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Recognizing a state under international law is significant as to legal
obligation, maintaining diplomatic relations and protecting human rights, etc.
This study attempts to analyze whether the Taliban government can be recognized
as the legitimate government or not? The study relies on the principles of
international law to examine how to effectively control and legitimacy of the
recognition.



This study does not deal with the political consideration or state
practice of recognition. Similarly, the study does not concern with the
recognition of Afghanistan, whose legal personality remains intact as
Afghanistan has been independent since 1919 despite the country facing several
challenges, her permanence cannot be questioned under international law. The
study employed doctrinal legal research in which normative approaches are used
to evaluate some of the literature to acquire the required legal propositions.



Prologue

Following the revolution in 1928 resulting in the overthrow of King Amanullah,
Nadir Kahn, who eventually succeeded to the throne, neither notified the
Government of the United States officially of his accession, which was done in
the case of certain of the European powers nor requested American recognition
through any official channel. Under the circumstances, the Department considered
that the recognition accorded to Afghanistan in 1921 did not extend to the new
regime of Nadir Kahn after the assassination of King Nadir Khan in the latter
part of 1933 and the accession of the throne of Mohammad Zahir, the Government
of the latter transmitted to the Department of State (through the Embassy in
Paris in July 1934) a letter addressed by the King to President Roosevelt
announcing the death of his father and his accession to the throne.[1]



The King
expressed the desire of his government “to strengthen the political and economic
relations, which it had and has still now with the High Government of the United
States”. In recommending to the President that recognition be extended to the
Afghanistan Government, the Department of State pointed out that all the great
powers had recognized it and that the present regime appeared to be a stable
one.[2]

2.0 Concept of Recognition



Recognition can be of a new state, new governments, or belligerency. It is
evidenced, in the case of a new state or government by officially acknowledging
the existence of such state or government and indicating a readiness on the part
of the recognizing state to enter into formal relations with it. The existence
in fact of a new state or a new government is not dependent upon its recognition
by other states. The term “recognition of belligerency” as used here refers to a
state’s acknowledgment that a revolt within another state has entitled
revolutionists or insurgents to benefits and imposes the rules of war on them.
The issue of foreign government recognition is exclusively a domestic one for
the United States, to be handled by the executive branch.[3]



In the United States, recognition has traditionally been done by the president
acting unilaterally on his own initiative, but in the case of new states, it has
also been done by the President with the President’s participation. Recognition
is mostly a question of purpose, which might be stated or implicit. The act of
recognition, on the other hand, must express a clear desire to:

1. treat the new state as such,
2. recognize the new government as having the power to represent the state it pretends to rule, and
3. maintain diplomatic relations with it.
4. to recognize that insurgents have the right to engage in hostile behavior.

Recognition shall not be accomplished by inference merely but by the full and
formal entrance into international relations through the public auction of the
respective executives of the two countries.



Every sovereign state has the right to be represented in the international
sphere by a government that has effective power over its territory, according to
international law.



The challenge with recognition in international law is that it is a policy
decision rather than a legal one. It is maintained that recognition is the
consequence of a choice made in the pursuit of national interest rather than in
the performance of a legal duty. If that’s the case, why is it that recognition
is so prevalent in the works of these same jurists who feel it’s illegal?



While arguing that the act of recognition has legal effects, some argue that it
is the beginning point of international personality with all the rights it
involves; that in any event, the form and circumstances of recognition are of
legal concern and demand the study of such issues as the distinction between de
jure and de facto recognition indicated.



When a policy act results in the so-called premature acknowledgment of the
parent states’ weight, a legal question emerges. This arrangement hid the fact
that the problem of state recognition has been linked to the inconsistency
between the conflicting doctrines of declaratory and sequential recognition.
Both have rejected that it is an issue of a legal obligation to the common good.



The constitutive theory as much as propounded culminates in two assumptions. The
first is that before recognition the community in question possesses neither the
right nor the obligation that international law associates with full statehood
and the second is that recognition is a matter of political discretion as
disqualified from a legal duty owed to the community concerned.



The Test of legitimacy

The legitimacy of origin as a criterion of recognition was rejected, as we have
seen, in various quarters already in the 17th and 18th centuries in favor of the
principle of effective one of governmental power. At the beginning of the
19th century, the test of legitimacy became prominent once more in connection
with the event which followed the French revolution.



It loomed significantly in the Vienna Congress discussions and Talleyrand’s
speech. There have been attempts to expand it to include state recognition. The
stance of the British government toward the French convention of 1793, the
Serbian government of 1903, the Greek government of 1922, and the refusal of
various states. To recognize a political community as a state, the state must
proclaim that it meets the international law requirements for statehood. The
State is obligated to provide recognition based on the fulfillment of the
conditions. The majority of practices are said to have adopted these ideas.



The Montevideo Convention on State Rights and Duties establishes the following criteria:

1. A permanent population,
2. a defined territory,
3. governance, and
4. the ability to engage in international affairs.

In this study, it is not proposed to discuss the State, which is the more common
instance of the international person, or the semi-sovereign states which have
certain of the faculties of the states but not others. The discussion will be
restricted to the De facto insurgent government.

When a rebel or organization attains such de facto power as to wage civil war
with the established government on a basis of roughly administrative and
military parity, international law confers upon its certain capacities. These fall into two categories:

1. The capacity to administer the area under the actual control and thereby commit the state as a whole to liability, and
2. The capacity to exercise belligerent rights against the de jure government and thereby commit other states neutrality.

It is not pretended that the de facto government in exercising capacities,
particularly those under category:

or person from the state
which it pretends to govern, but it is a different legal person from the de jure government
in the exercise of rights category under (b). Two good reasons underlie this
formulation; as the insurgents gain control of national territory they act as if
they were government thereof, and pretend to have legal capacity. If their acts
are null and void there is a legal vacuum in their territory with consequent
prejudice to the position of aliens who happen to be therein or own property
there. Secondly, any other rules would prejudice international order by leaving
neutralized free to intervene in the war, in the way of gun-running, for
example, while depriving the inhabitants of any right to prevent them.[4]



Lord Atkin stated, “I understand exercising all the functions of a sovereign
government in marination law and order, instituting and maintaining courts of
justice, adopting or imposing laws regulating the relations of the inhabitants
of the territory to one another and the government by “exercising de facto
administrative control” or “exercising effective administrative control.” It
necessitates the ownership and management of property, whether for military or
civic reasons, including battleships and trade ships.



De facto and de jure Recognition[5]

De facto recognition implies when there is doubt in the viability of the
government and this type of recognition and hesitation or assessment of the
situation and attitude to see wait and engage to observe the effectiveness of
the State whether to be successful for the de jure recognition.



De jure recognition, on the other hand, involves issuing an acceptance letter in
which the state acknowledges that the government’s effective control is
permanent and stable and that there is no legal subservience to the recognizing
state. The Soviet government, for example, was de facto recognized by the United
Kingdom in 1921 and de jure in 1924.[6] For instance, the Soviet government
was de facto recognized by the UK in 1921 and de jure in 1924.



Implied recognition [7]

This is due to the fact that recognition is founded upon the will and intention
of the state that extends the recognition.



Conditional recognition

Subject to fulfillment of certain conditions for eg. Treatment of religious
minorities



Collective recognition

By means of an international decision whether by an international community in
its collective dissertation of control over membership because it has not been
warmly welcomed nor can one predict general application for some time to come.



The phrase “recognition” encompasses a wide range of factual situations
requiring other powers’ recognition. They are the emergence of new states with
non-constitutional systems of government, geographical changes, particularly
those obtained by force and including the expansion of states, and civil war
parties.[8]



It is general practice that governmental authorities claim competence over
territory and people and foreign states are faced with the choice of recognizing
or not recognizing that claim is valid.[9] If it is restricted to the idea of
the factual situation, recognition is not acknowledged as a political action in
which the recognizing States express a desire to admit the factual situation and
so bring about specific legal implications of that recognition.[10]



Type of situation calling for recognition

1. The problem personality: the Constitutive versus the Declaratory schools, on the independence of new states
   When a community pretends to statehood, does its capacity in international law date from the moment it becomes independent in factor from the moment when it is recognized
2. The supposed duty to recognize a new state[11]
   The exponent of both the consecutive and declaratory schools have attempted to forge a link between the theory of recognition and the supposed duty to recognize and Lauterpacht and Chen may be taken as representatives of the respective position. Lauterpacht, who is exceptional in this respect among the constitutive school, argues that since the state cannot exist as a legal actor until recognized, international created a duty of recognition to give it birth.
3. The condition for recognition[12]
   Recognition is subsequent and consequential and hence is conditional upon the entity being internally organized in such a way as to be competent to perform an international act.

Modes of recognition

Recognition is an act of the executive deliberately performed to bring about the
accepted consequence of the act. Hence a government can have almost normal
intercourse with another and yet not recognize it, allowing only the
consequences of its intercourse and excluding the other consequence which would
flow from recognition.[13] The following are some of the acts to be given
appropriate weight;

1. The reception of diplomatic representation
2. The entry into treaty relationships with unrecognized government
3. Recognition and, membership in the international organization. The admission of new states to the UN the International Court of Justice dealt with the functions of each organ of the UN in determining the qualification of statehood.
   
   1. Recognition of new States by the international organization and
   2. Decision on credentials of rival governments
4. Recognition of a government as the government de jure and recognition of a government as the government de facto.

There are two theories to the nature of recognition of states namely; the
consecutive theory maintains that it is the act of recognition by other states
that creates a new State and gives it a new legal personality, not the process
which obtained the independence and such states bind by international
law.[14] The constitutive theory asserts that the unrecognized does not have any
rights or obligations under international law. The second theory called the
declaratory theory is the opposite approach it maintains more practical
realities the new state acquires the legal personality, not by the particular
factual situation. It will be legally constituted by its efforts and
circumstance already existing. The declaratory theory’s emphasis on factual
situations reduces the legal power of the state to grant recognition.[15]



Effect OF NON -recognition and the courts[16]

Under the English[17] and US court system

1. An unrecognized government has no locus standi
2. An unrecognized government cannot claim Immunity
3. Cognizance of legal acts of unrecognized government can be enforced
4. Contract made by unrecognized will not be enforced
5. Change of nationality will be acknowledged only after recognition
6. Legislation winding up companies or others use altering their legal status will not be given cognizance
7. Suspension of the operation of Treaties concluded by parent government.

Recognition When The Government Change[18]

Recognition of state and government often goes together, for instance, Great
Britain and the United States recognized Israel by de facto recognition. The
granting or non-granting to a government has nothing to do with the recognition
of the state itself.

1. Is official recognition of a change of government required? The Estrada doctrine
   It is vital to acknowledge the change of administration in order to establish a relationship with the new regime. States may treat the new administration as if it had already been recognized, and this is equivalent to recognition. The creation or maintenance of diplomatic ties with a government does not indicate an endorsement of that country’s internal policies, and the continuation of diplomatic connections among American states is desirable.[19]
    
2. The supposed duty to recognize the change of government’ the qualification for recognition[20]
   There has scarcely ever been an instance where refusal to grant recognition has not been supported on quasi-legal grounds, which suggests that deference has been paid to the idea that recognition should be accorded if the new government is legally qualified to receive it. In 1918 Great Britain was prepared to recognize the de facto Finnish government if it would obtain the release of British subjects arrested on Finnish territory by the Germans, and give guaranteed passage to allied ships through its waters.[21] The United States’ decision to recognize Hejaz was stated to be largely influenced by the charter and extent of American commercial interests.[22] Great Britain withheld recognition of Mexico in 1918 until satisfaction had been obtained respecting the treatment of British property.
    
3. The qualification of effectiveness:
   The recognition accorded prematurely is a breach of international law since it involves the bolstering up of the revolutionary regime and thus an intervention in the internal affairs of the state. This rule however is very relative in its application, especially since the tendency in England has been to issue certificates of the foreign office acknowledging the “effective administrative control” of revolutionary governments over only a portion of the national territory. The most can be said is that until a rebel organization attains capacity in international law it lacks the qualification to be recognized as it may be recognized as the former and should be recognized as the letter.
    
4. The qualification of constitutional legitimacy:
   The Tobar doctrine and the Wilson Policy: The doctrine of Dr. Tobar of Ecuador, advanced in 1907, that government that had risen to power through extra-constitutional means should not be recognized.[23] Was embodied in a treaty of that year between the five central American Republicans.
   
   Strictly speaking, recognition is not required of a government established according to an orderly constitutional process; the problem of recognition arises only in the cased of unconditional change. There can be therefore no suggestion of making constitutional legitimacy a condition of recognition; such a rule would be tantamount to one of perpetual non-recognition of any revolutionary regime and this is certainly not a rule of international law.[24]
   
   1. The qualification of willingness to fulfill the international obligation
      The United States has with some consistency and increasing frequency refused to recognize governments until they are satisfied it with their “willingness”, “disposition”, “capacity”, “power”, “competence” or position to fulfil international obligations. All these terms have been used at one time or another. Great Britain and France have also made recognition conditional at times upon willingness to fulfil the international obligations.
      
      The argument favouring this qualification as part of international law is the reputation of liability to which the reply is given that disposition to fulfil an obligation is irrelevant to the question of liability in any legal system. The reply is unsatisfactory because there are inadequate procedures in international law for the enforcement of claims and non-recognition may be the only effective method of securing fulfilment of the obligation.

Recognition of Belligerency

1. Principle of recognition of belligerency
   The underlying principle regulating the recognition of states and governments also applies to the recognition of belligerencies: the statement, express or implicit, that hostilities fought between two groups, one of which is not a sovereign state and the other perhaps not a sovereign state, are of such type and extent as to permit the parties to be considered as belligerents engaged in war in the meaning normally associated to that term by international law. The crux of the notion is that recognition is an obligation imposed by the reality of the situation, not a favour or a matter of unrestricted political choice. The nature of the conditions that impose a duty to recognize belligerency or, according to others, warrant acknowledgment of belligerency are generally agreed upon.[25].
    
2. The following are the conditions:
   First, there must be an armed conflict of a general (as opposed to just local) nature inside the Stat;
   Second, the rebels must take control of and manage a significant chunk of the country’s territory. Third, they must carry out the hostilities in conformity with the norms of war and with a distinguished armed force functioning under responsible leadership.
   Fourth, there must be conditions that force exterior nations to declare their attitude through the use of recognized belligerency.
   To grant recognition of belligerency when these conditions are absent is to commit an international wrong against the lawful government. The same applies to premature recognition. To refuse to recognize the insurgent as belligerents although these conditions are present is to act in a manner that finds no warrant in international law.
   
   The practice of states in the matter of recognition of belligerency:
   
   1. British practice[26]
      In contradistinction to recognition of States and government, recognition of belligerency does not, as a rule, take place using a formal declaration to that effect. It occurs either through the express adoption or the actual pursuance of an attitude of neutrality identical with that obtained in ordinary wars – an attitude of which the essence is the impartiality of treatment and submission to because of interference necessitated by the conduct of the war.
      
      A formal proclamation of neutrality, as distinguished from limited municipal enactment of announcements enjoining upon individuals and attitude of restraint and non-interfaces, constitutes an unequivocal mode of recognition of belligerency. Such a formal proclamation of neutrality, clearly coupled to recognize e belligerency, was issued by Great Britain on 13 May 1861, during the American civil war.
       
   2. The practice of the United States of America
      The practice of the United States in connection with the wars of independence of the Latin American states shows that the conceptions of belligerency of bodies other than states did not spring up at once in the form which we know it today. It began with the admission of rebel merchant vessels into ports; it continued with the admission of other war vessels and prizes; gradually, it assumed that the form of grant equal and impartial treatment (subject at the outset, to existing treaty obligation).
      
      During the revolutions in South America directed against the Spanish rule, there was no express recognition of belligerency by means of a proclamation of neutrality. In 1915 President Madison issued, under the neutrality laws, a proclamation in respect of hostile expedition against Spain, but that step did not in itself constitute recognition of belligerency.
      
      It is often maintained that recognition of belligerency by outside states is an important factor in securing compliance with rules of warfare and in helping to infuse into an otherwise savaged and irregular combat an indispensable measure of restraint and humanity.[27]
      
      According to the doctrine of price Metternich, the Greeks as rebels are not entitled to the same rights of war, as legitimated belligerents are one of which, we think His Highness would do well to weigh all the consequences before he promulgates it to the world.[28]
       
3. Recognition of Insurgency.
   Insurgency recognition is distinct from belligerency recognition. Insurgency, as defined by a foreign state, is the totality of rights and advantages according to the rebellious faction by the States during a civil war. The distinction between the status of belligerency and insurgency with the foreign state is best articulated in the thesis that belligerency is a relationship with the foreign state that gives birth to certain rights and obligations, but insurgency does not.
   
   Insurgency as a threat to a foreign state stems, on the one hand, from nations’ refusal to recognize the rebellious party as a belligerent because one or more of the belligerency requirements are missing. Recognition of insurgency, on the other hand, is the result of foreign powers’ unwillingness to see insurgents as mere lawbreakers, as well as their desire to establish a regular, albeit provisional, relationship with them. It is possible and has happened, that some of the legal conditions for recognizing belligerency are missing, but it is nevertheless impractical to act as if civil wars in other countries are wholly internal affairs.
   
   Thus, it may become necessary to apply municipal enactments intended to prevent nationals from participating in a foreign civil war. The factual recognition of the existence of the limited international personality of the insurgents may somewhat inaccurately but conveniently be referred to as recognition of insurgency.
   
   International law knows of no recognition of insurgency as an act conferring upon insurgents’ international rights flowing from a well-defined status. That insurgency has been recognized in a given case means that right a conceded or particular municipal enactment brought into being.[29]
    
4. Recognition of Insurgent, during the Cuban War of independence
   The United States continually refused to recognize the insurgents’ belligerent status during the Cuban insurgency against Spain, which lasted from 1868 to 1880. It did so on the grounds that, in the words of President Grant’s communications to Congress on December 7, “it did not discover in the insurgency the existence of such a significant political organization, real and manifest to the government towards its people and other States as to lift the fight out of the category of a mere rebellious insurgency, or occasional skirmishes, and place it on the awful footing of war which recognition of belligerency would aim to elevate.”
    
5. Recognition of belligerency Spanish Civil War, in 1936-1939
   For the grounds that the battle had taken on a complexion different from that of civil war in the ordinary sense of the terms, Great Britain and many other states postponed recognition of the insurgents’ belligerency until the end of the civil war.
   
   The call for recognition of belligerency during Brazil’s revolution in 1893 was firmly denied by the US and other countries. Foreign representatives, including those from the United Kingdom and the United States, warned the rebel commander that any attempt to bombard Rio de Janeiro or disrupt economic operations in the port would be met with force.[30]
   
   In 1899 the secretary of state of the US instructed the Minister to Bolivia to have no diplomatic relation with insurgents which might imply their recognition as the legitimate government of Bolivia. Recognition of insurgency creates a factual relation in the meaning that legal rights and duties between insurgent and outsides states exist only in so far as they are expressly conceded and agreed upon for reason of convenience of humanity or of economic interest.

State practices on the recognition of new governments

1. Argentina
   President Irigoyen of Argentina was forced out of office by a coup d’état[31] accomplished by General Uri Buru on September 6, 1930. Formal notice of the establishment of the provisional Government under the provisional presidency of the Uri Buru was given to the American embassy in a note received on September 9, announced for an interim government and seeking recognition for a mutual relationship.[32]
   
   The American Ambassador recommended to the Department of the State that recognition be extended to the new regime. The US government received the report from its ambassador that the provisional government had full control over all the provinces and exercise through civilian or military intervention except the two provinces that which normal government have under its control[33].
   
   The US ambassador added that the socialist party protesting the illegality of the provisional government. All other parties in the capital except the Radical parties have approved the provisional government. Finally, the Department of State directed the ambassador to establish diplomatic relations with the new Argentina government.[34]
    
2. Bolivia
   A coup d’état [35] led by the republican leader Bautista Saavedra resulted in the toppling of Bolivia’s government and the resignation of the president on July 12, 1920. On July 19, the American minister reported to the Department of State that Saavedra assured him that the new administration would uphold all accords. Bolivia held elections in accordance with the amended Constitution.
   
   Bolivia conducted an election according to the revised Constitution. In the view of the fact that the election of Dr. Bautista Saavedra to the presidency of the Bolivian constitution as amended by the constitutional convention elected in November 1920 has determined to extend recognition to the constitutional government.[36]
    
3. Chile
   Recognition was not granted by the USA to the government of General Altamirano who became acting president of Chile in September 1924, when president Alessandri left the country under pressure from a military Junta, nominally on a six months leave absence.[37] The reasons for withholding recognition were stated in telegraphic instruction to the embassy in Santiago in 1924.
   
   The policy of the United States of America in extending the recognition to any administration which may come into power in other nations by extra-constitutional means, for the US does not seem to be justified to extend recognition. In determining upon the recognition of a new government in a foreign state, the government of the US must of course, first be guided not only by an assurance of that international obligation carried out by the new government but also may by satisfactory evidence that it is in apposition to maintain stability and retains its power through the acquiesce of the people.
    
4. Nicaragua
   Through a note of September 12, 1910, from his representative in Washington to the Department of State, Seno Juan Estrada, who had proclaimed himself provisional president of Nicaragua, requested recognition of his government by the United States, stating that he was in peaceful and unrestricted possession of the republic and making the following representation[38];
   A general election will be held within one year, the date to be fixed by a constitutional convention convoked for that purpose, the provisional government will endeavour to improve and rehabilitate the national finances to which end the aid of the Department of state will be asked in securing a loan in the United States.
   
   Those responsible for the death of Cannon and Groce will be prosecuted and punished and suitable indemnity paid to the families of the deceased. The American minister informed him that any government assuming power by force would not be recognised by the United States.
    
5. Paraguay
   The Ayala government was overthrown by a revolutionary movement that broke out in Paraguay on February 17, 1936; Colonel Franco was selected Provisional president two days later. On February 20 the legation reported to the department of states and the Department replied it would be wise for the matter of recognition to be referred to Chaco Peace Conference,[39] and it should be affirmed by the Paraguayan regime to uphold the peace agreement, based on the agreement in the peace conference the US government expressed its intention recognized the Paraguayan government.[40]
    
6. El Salvador
   As a result of a military coup d’état carried on December 4, 1931 President Araujo was compelled to leave El Salvador, taking refuge in Guatemala after having deposited the presidential powers in the Third Designate, Dr Olano. General Martinez, the vice president, at once assumed the presidency.
   
   On December 20 the Department of State sent the following telegraphic instruction to the Minsters in Guatemala, Honduras, Nicaragua and Costa Rica, that the US reached the conclusion the government headed by General Martinez may not properly be recognized under the terms of Art. 2 of the General Treaty of Peace and Amity of 1923.[41] General Martinez acceded to the presidency through a coup d’état and that government has not been recognized as constitutional.[42]
    
7. Greece
   Former King Constantine, who had abdicated the throne of Greece on June 1, 1917, in favour of his son Alexander, was recalled to the throne of Greece following an election held in November 1920 resulting in a defeat of the Venizelos government and a plebiscite held on December 5, 1920, showing a majority in favour of his return.
   
   The Department of State decided to delay recognition and accordingly instructed the Minister on January 7 as follows: Our final decision will be made upon the usual receipt of notice from the king of his assumption of office, it would be necessary that a formal announcement signed by King Constantine and addressed to the President of the United States.[43]
   
   The charge d’ affair stated that this represented a frank declaration that the Greek Government regarded the reign of Alexander as illegal, and added that the British Government and the United States withheld recognition.[44]
    
8. Turkey
   The Department of State was notified on April 27, 1909, by the Ambassador in Constantinople (Istanbul) that Sultan Abdul Mohamid Turkey had been dethroned and that his brother Richard had been placed on the throne and would reign under the name of Mohamid V. Similar notification was received on the same date from the Turkish Ambassador in Washington. On April 28 President Taft sent a telegram of congratulations to the new Sultan, and the Turkish Ambassador was informed of this act.[45]
   
   The signing of the treaty of peace and of a treaty of extradition on August 6 1923 at Lausanne by the representatives of the United States and the representatives of “The Government of the Grand National Assembly of Turkey” constituted recognition of that Government by the United States.[46]
    
9. Persia (Iran)
   In a dispatch of July 18, 1909, the Legation at Teheran reported to Persia the Department of State that the city had been occupied by revolutionary forces, that the Shah had fled, and that the Crown Prince had been proclaimed Shah. The ex-Shah had taken asylum in the Russian Legation and had formally abdicated on July 17 in favour of the Crown Prince.
   
   The minister at Tehran advised the Department of State on October 31, 1925, that the Majlis pass the law that abolished the king Kaja sovereignty. The Reza Pahvlavi formed the provisional government after taking oath in the Parliament on that base the US extend its recognition on Nov.7 1925.[47]
    

Recognition and legitimacy: Implications of Taliban government

In the context of recognition of the Taliban government, the question arises is whether this is a legitimate government? Can the Taliban lead to a legitimate government? Whether UN grants legitimacy to the group? The studies found there are two types of practices on the recognition of government or a State namely, the first on the political consideration and the second is the legal ground.



The
political consideration includes geo strategy interests and political gain,
where the Taliban will get recognition: as of now a few countries have given
implied de facto recognition to the regime, and these countries include Russia,
China, Turkmenistan, Pakistan, Iran, and Qatar. These countries have close
engagement with the Taliban government despite the Mullah Hassan Akhund an
interim Prime Minister of the Taliban is on the UN blacklist,[48]
and Sirajjudin Haqqani, the Taliban interior minister who is wanted person by
the Federal Bureau of Investigation (FBI) as the Terrorist.[49] On the other
hand on the legal ground, the Taliban government’s legitimacy still is in
question since it comes into power by overthrowing the previous Afghan
government.[50]

The United Nations claims that the Taliban government is not legitimate on
grounds; it has committed gross violations of human rights such as the
prosecution of journalists[51], the prevention of women in public
participation[52] and prohibition of girls’ educations[53] and the breach of
various provisions of international humanitarian laws in
Afghanistan.[54],[55],[56] After the Taliban government come to power many
Afghans left Afghanistan.



For instance, one Lakh Twenty Thousand people who were
closely engaged with the USA evacuated.[57],[58] The UN claims that the Taliban
government is not inclusive by its composite it has excluded others[59]. The
Taliban government is governed by the Prime Minister whose name is registered as
a terrorist[60] in the UN sanction list.[61],[62],[63],[64] Additionally, the
Taliban released all the prisoners who committed heinous crimes against humanity
such as various atrocities, such as murder, rape, kidnapping of kids for money,
bombing the schools etc. without being tried by a court of law.[65]



The Constitution of Afghanistan 1923[66]

Looking into the 1923 constitution of Afghanistan the Taliban government is not
concerned with that and the provision of that constitution does not fit the
present situation. For instance, Art.1 protects against discrimination the Jews
and Hindus have equal treatment as to the rest of the Afghans. Art.10 personal
freedom. Art. 14 right to education, art. 16 equal rights and duties, Art. 17
public participation by all Afghans in civil administration. Art. 36 directs the
Government officials shall be appointed based on the qualification and
competence including professional. Conversely arguing that the Taliban subjects
girls’ education according to tenets of Islam, women are confined at home, and
women are not allowed to public life such as a political office. Due to the USA
and UN game with the Taliban regime, Afghan people die due to hunger and
starvation, children suffer from malnutrition.



The Constitution of Afghanistan1964[67]

After the collapse of Kabul on August 15, 2021, the Taliban announced to
adopt[68] the 1964 constitutions which were the Grundorm[69] for forty
years during the reign of King Zahir Shah.[70]



Legal speaking the aforementioned constitution ideal is based on the monarch
system which requires a king and a Prime Minister and so on, whereas the Taliban
government structure is complicated on it is based on its system. The Taliban
government composition is different from the provisions of the said
constitution. Such as Art. 1, declares the state as a monarch system Art. 4
flags of the country shall be tricolor namely black, red and green whereas the
Taliban regime chose the white indicating victory of the Taliban regime.



Art.5,
King personifies the sovereignty in Afghanistan: Art. 9 (9) stipulates that the
king has the power to grant credentials for the conclusion of international
treaties and in accordance with the provision of Art. 9 (10), the king signs the
international treaties. Art. 66 highlighted the succession within the family of
the king in case of (Art. 15, death) or (Art.19, abdication) of the king if
there is no legal successor the electoral college shall be employed and can be
effective on the majority vote:

Art. 25, enshrine equal rights and duties to
all Afghans: Art.26, stipulates human rights as inalienable rights, Art. 26,
prohibits torture and lies down that no person shall be killed or punished
without a court order in pursuance of law: Art. 31, deals with freedom of
expression, opinion: Art. 40 mandates the government and citizens to obey the
Constitution and rule of law. Finally, Art.64 expresses that the Parliament
grants and ratifies the international treaties. Hence, the provision of the
Constitution 1964, requires parliament in the country.



The Constitution of 2004[71]

The Taliban regime is against the idea of the Constitution of 2004 and will not
bind by the said Grundorm at all and denied adopting the provision of the
Constitution as its ideal is based on the idea of democracy universal franchise,
freedom fundamental rights, protection of human rights especially the protection
of women and minorities. The provisions of the Constitution of 2004 are as
follows; Art. 1 enshrines the state as Republic: Art.6 protection of human
dignity, equality of rights and duties: Art. 6 says the States shall create a
prosperous and progressive society.[72]



In the context of Afghanistan, the provision of the Constitution of Afghanistan
read as follows; Art. 7 stipulates the suppression of terrorism. The State shall
observe the UN charter international agreements, international treaties, to
which Afghanistan is a member, and the observance of the Universal Declaration
of Human Rights. The State shall prevent all kinds of terrorist activities,
cultivation, smuggling, production, and use of intoxication. Hence, ideally Art.
7 is incorporated to empower the state to make laws on the eradication of
terrorists.

Art. 24 stipulates dignity and Human rights in Afghanistan: Art. 34 freedom of
expression, Art. 43 free and compulsory education art. 58 Afghan governments
shall establish an independent Human Rights Commission.



Art. 60 of the Constitution 2004 deals indirectly with democracy, the President
shall be the head of state. Art.61 stipulates that the president shall be
elected and earn 51 percent of the vote cast in a fair and transparent election
Finally, Art 62 (3) the individual nominated for the election as the president
or the head of the state shall not have been convicted of crimes against
humanity, or a criminal act or deprivation of civil rights by a court of
justice.



Art. 65 says any matter of political and economic is of national importance
shall be put to the referendum to the people of Afghanistan and under Art. 90
the Parliament is the highest authority to give recognition to any of the
international treaties. The Taliban government does not have a parliament
system. The people do not have the right to express the issue of national
importance.



The recognition and non-recognition of the Taliban government were justified on
the following grounds; the regime administration is incompatible with the
following international Human Rights convention, UN charter, and various
Security Council resolutions viz;



The Charter of United Nations 1945[73]

UN Charter imposes an obligation upon member states to protect basic fundamental
rights and human rights. Also, it calls for international peace and security.
However, the Taliban government’s recognition is under challenge by the UN.

1. Art. 1 of the UN Charter talks about international peace and security and calls for collective measures. The world is silent in the case of the human catastrophic of Afghanistan, the proclamation does not bring prosperity or human rights protections Art.2 enshrine that the State member shall fulfill their obligation in good faith, some countries have engaged with terrorists for their political gain and there is no question of legal involvement or put them under question for the violation of the right of fellow human beings

Conclusion

Legally speaking, recognition of new states usually carries with its recognition
of the government of the state so recognized, since states can speak and act
only through their government. This was true in the case of Bulgaria, in 1909,
Albania, Estonia, Latvia, Lithuania, and Egypt, all in 1922; and Saudi Arabia in

1931. In certain other instances, a formal note was sent by the Department of
      State in the USA to the diplomatic representative in the USA of the USA in
      question.
      
      
      
      This was the method followed in the case of Armenia in 1922, Finland
      and Yugoslavia in 1919, and Poland was recognized using a telegram from the
      secretary of state in 1919 and this context formal reception by the President of
      an Afghan mission in 1921 was considered to constitute recognition of
      Afghanistan.
      
      
      
      The recognition of the Czechoslovakia national council in 1918 as
      a de facto belligerent government was made through a formal public announcement
      issued by the secretary and Iraq was recognized in 1931 by accrediting a charge
      d’ affairs to the king. In the case of Iceland recognition is established as a
      result of certain bilateral agreements. The question is, whether is it
      legitimate that the Taliban be recognized by the USA based on the bilateral
      dealings which both hold in Doha.[74]
      
      
      
      The United States facilitated the release
      of five thousand Taliban fighters, the American withdrawal give wings to the
      Taliban and taught them to fly in Afghanistan with no limitations, and
      additionally the US forces left behind a huge number of armaments for the
      Taliban to mobilize like a self-sufficient government.[75],[76] Considering
      various countries’ situations, the following condition was held as the basic
      criterion for the recognition.
      
      
      
      Constitutional means (b) Acquiescence of people
      (c) Control of territory and (d) Fulfilment of international obligation.
      
      
      
      The first condition of the new government takeover by legal means i.e. through
      the constitution and the consent of the people was the basic element for a new
      government, the new government should have full control over the territory and
      the government must be able to fulfill its international obligation. It was the
      practice in Great Britain and the U.S. did not grant recognition for three types
      of a new government.
      
      
      
      The government took the power by extra-constitutional
      force, a coup d’état[77]However, recognition was granted on the fulfillment of
      the above condition or contesting an election. Legally, speaking the Taliban
      government did not take over the government in Afghanistan by legal means but by
      extra-constitutional means.
      
      
      
      The acquiescence of people is absent from most of
      the Afghan people who fled Afghanistan on the regime does not fulfill the
      international obligation such as protection of human rights, protection of
      minorities, or prevention of terrorism. The Taliban government cannot run a
      government it lacks financial resources and human resources such as professional
      manpower to run efficient administration.
      
      
      
      References
      Books
      
      · Anne EVANS, A guide to government in Afghanistan, (Afghanistan Research
      Unit 2004)
      
      · Antonio Cassese, International Law,296-374 (Oxford University press
      2001)
      
      · BROWNLEE, Principle of Public international law,7th edn. (Oxford
      University Press 2008)
      
      · Cambridge History of British foreign policy 45 (Cambridge University
      Press 1923) D. W. Bowett, The Law of International institutions 23-26
      (Universal Law publication 2003)
      
      · Fred L. Borch and Paul S. Wilson, International Law and the War and
      Terror (Naval War College Press Rhode Island 2003)
      
      · Hans- Herbert Tauscher Die Vorzeitige Anerkennumg im
      Volkerrecht (1959); Dugard Recognition and the United Nations (1987).
      
      · HERBERT W Briggs, The Law of Nations 543-577 (Cornel University 1947)
      
      · H. A. Smith Great Britain and the law of nations, 77-80 (Oxford
      university press 1932)
      
      · IA Shearer, Starke’s International Law 117-125 (Oxford University Press
      2020)
      
      · Green Haywood Hackworth, Digest of international, (United States
      Government Printing office 1940
      
      · G.H. Hackworth, Digest of International Law 218 (The Government press
      Washington, 1940)
      
      · Green Haywood Hackworth, Digest of International 224 (United States
      Government printing office Washington 1940)
      
      · G. Gopa Kumar, International Terrorism and Global Order in the
      21st Century 89 ( Kanishka publisher 2003)
      
      · James Crawford, The creation of Sates in International law, 2nd ed..
      (Oxford University Press 2006)
      
      · Jan Klabbers, International Law, (Cambridge Press,2013)
      
      · James H. Leboving, the US wars in Vietnam, Iraq and Afghanistan (Oxford
      University Press 2019)
      
      · January 1941 the convention was ratified by the following states;
      Brazil, Colombia, costa
      
      · Lauterpacht, International law 271 (Cambridge University Press 1947)
      
      · Jean Charpentier La Reconnaissance International et L’ Evolution du
      Droit de Gens ( Paris,1956);
      
      · J.L. Brierly, The Law of Nations, 6th edn. 88(Oxford university press
      1998)
      
      · Justice Palok Basu, Law relating to Human rights, under the Indian
      constitution and allied laws 910-915 ( Modern Publication 2002)
      
      · Justice Palok Basu, Law relating to Human rights, under the Indian
      constitution and allied laws 941-944( Modern Publication 2002)
      
      · Lauterpacht Recognition in Intranational (1947); Chen, The
      International law of recognition
      
      · Mc Nair in law quarterly review 481 (Cambridge University Press 1937)
      
      · Malcomn Shaw, International Law, 367-368 (Cambridge University press
      2003)
      
      · IV Manley O. Hudson, International legislation 2416 (Cambridge
      University press 1931)
      
      · Oppenheim, international law, (Tomoko Hudson 2003)
      
      · P.K. International law documents (universal Law publishing Co. Pvt. Ltd
      2003)
      
      · Robert D. Crews and Amin Tarzai, The Taliban and the crisis of
      Afghanistan (Harvard University Press 2009).
      
      · Shirley V. Scott, International law in world politics; an
      introduction (Lynne Rienner Inc. 2012)
      
      · Samantha Besson and John tasioulas, the philosophy of International
      law (Oxford University Press 2010)
      
      · SIR Rabbet Jennings, Oppenheim’s International Law, 9th ed. 156
      (Universal Publication 2003)
      
      · Warren G. Harding | The White House,
      
      · Vol. III Hackworth. Digest of International Law 166-73 (Washington
      Government Printing Office 1942)
      
      
      
      Articles
      
      · Atal Ahmadzai, Perspectives on Terrorism, 15 TRI, 17-36 (2021)
      
      · Aryaman Bhatnagar, Afghanistan and the International Community:
      Limitations of Engagement IPCS (2012).
      
      · Anthony. H. Cordesman ‘Peace’ in Afghanistan, Iraq, Syria, Libya, and
      Yemen Csis.org,
      
      · Barnett R. Taliban, Afghanistan under the Taliban, 98JSTOR,79-91
      (1999).
      
      · IA Shearer, Starke’s International Law 125-140 (Oxford University press
      2020)
      
      · J. P. Chamberlain, International Legislation. By Manley O. Hudson
      (Washington: Carnegie Endowment for International Peace. 1931. Four volumes. Pp.
      cxvii, 3218.), 26 American Political Science Review,748–750 (1932)
      
      · Rudiger Wolfrum and Cristiane E. Phillips, The Status of the Taliban:
      Their rights and Obligations under International Law 6 MPYB, 559-601 (2002)
      
      · Thomas D. Grant, Current Development: Afghanistan recognizes Chechnya 4
      AULR, 869-894 (2000)
      
      · William Maley, Taliban Triumphant?52 JSTOR 275-276 (1996).
      
      Resolutions:
      
      · United Nations General Assembly Resolution 217(III), dated December
      10th, 1948.
      
      · General Assembly Resolution49/60, dated December 9th, 1994.
      
      · United Nations General Assembly resolution 2200A (XXI) of December 16,
      1966
      
      · Adopted by UN Security council conference No. 1373 vide dated September
      28th, 2001.
      
      · Adopted by the Security Council at its 4385th meeting, dated September
      28th,2001.
      
      · Adopted by the security council at its 44441steeting, in November 2001.
      
      · Adopted by the Security Council at its 441441steting, dated November
      14th 20,01.
      
      · Adopted by the Security Council at its 4434th meeting, dated December
      6, 2001.
      
      · Adopted by the Security Council at its 4443rd meeting, dated December
      6, 2001.
      
      · Adopted by the Security Council at its 4449th meeting, dated January
      1, 2002.
      
      · Adopted by the Security Council at its 4452nd meeting, dated January
      16, 2002.
      
      · Resolution 35, The American Union Law and Treaty Series, No.23 The
      Bogota Charter of the O.A.S. is found in U.N.T.S. vol. 119 p.3; T.I.A.S. 2361.
      
      
      
      Letters
      
      · MS. Department of State, file 812.00/25133.
      
      · Nanni v. Pace and the sovereign order of Malta, Ann Dig., 1935 -37 case
      No. 2. See also sovereign order of Malta v. Soc An. Comm., ILR 1955, p. 1; Scrfi
      v. Sovereign order of Malta., ILR 1957, p.1 holding that a contract between and
      Italian and the Order was bit subject to Italian law
      
      · Rich , Recognition of state; the collapse of Yugoslavia and the Soviet
      Union ;4 EJIL. 1993 p.36.
      
      · U.S. For. Rel. 1918, II, p.285.
      
      · The Recognition Policy of United States since 1901 (1928) p. 97 et seq.
      
      · UN rep’, vol I, P. 369 at p.381(1923) in 1973 Jefferson with respect to
      the French Revolution laid down the policy that actual power and not
      constitutional legitimacy entitled a regime to be recognized.
      
      · Minster Cappe to Secretary Polk, Nov. 15 and Dec.6,1920, MS. Department
      of states, files 868,001 C76/21; Mr. Cappa to Mr. Davis, Jan, 18 1921 ibid.
      files 868.001 C76/22; Charge6 Hall to secretary Hughes, Mar. 16, 1921,
      ibid.868.001 C76/32; 1921 For. Rel., Vol. II pp 138-15[1] The acting secretary
      of stat (Polk) to commissioner Heck Jan. 21, 1919, MS. Department of states,
      file 123H35/60a; 1919 For. Rel, Vol. II, pp.810-811.
      
      · Charege Amory to Secretary Keillog, no. 77 and 78 Oct.31 and Nov.1 1925
      MS. Department of States, files 891,01/23. 891.0124; Mr. Kellog toMr. Amory, no.
      53, Nov. 3, 1925, ibid. file 891.01 /25; Mr. Amory to Mr. Kellogg, no. 81, Nov.
      5, 1925, and Mr. Kellogg to Mr. Amory, no. 56, Nov. 5, 1925, ibid. 891.01 /27;
      Mr. Amory to Mr. Kellogg, no. 88, Dec. 15, 1925, and Mr. Kellogg to Mr. Amory,
      no. 62, Dec. 16, 1925, ibid. 891.01 / 40.
      
      · Minister Howard to Secretary Hull, no. 21 of Feb. 19, 1936, no.22 of
      Feb. 19, 1936, (4 p.m.) no. 24 of Feb. 20, 1936 (7 p.m.) MS. Department of
      state, files 834.00/794/795/796; Mr. Hull to Mr. Howard, nos.2 and 4, Feb.21 and
      Mar.3, 1936 ibid 834.00/796, 834.01/12.
      
      · Ambassador Bliss to Secretary Stimson no. 124 and 126, September 7 and
      9 1930, M.S. Department of State, file 835.00 Revolutions/2 835.00
      Revolutions/5; the acting secretary of state (cotton) to Mr. Bliss no. 100,
      Sept. 11,1930, Ibid. 835.01/7.
      
      · According to Modern dictionary of international legal terms: coup
      d’état, also called coup, means the sudden, violent overthrow of an existing
      government by a small group.
      
      · Minister Magennis to Secretary Colby, July 12, 19 and 20 and 1920 Ms.
      Department of state files 824.00/55, 824.00/67, 824.00/66; the acting secretary
      of state (Davis) to Mr. Magennis, Dec. 9,1920, ibid. file 82400/154c; 1920 For.
      Rel., Vol. I, pp. 372- 386.
      
      · The charge d’ affaires in France (Mariner) to Secretary Hull nos. 493
      and 1019, June 30 and July 3, 1934, MS. Department of state, files 890h.001
      Zahir/4 890h.001 Zahir/7: the Acting Secretary of state (Phillips) to president
      Roosevelt, Aug.21,1934, ibid, file 890h.01 Zahir/12; Mr. Phillips to the
      Ambassador in France (Straus), no 549, Aug. 28,1934 ibid. 890h.001 Zahir/13.
      
      
      
      websites:
      
      · Afghanistan: US-Taliban deal hastened Afghan collapse, defence
      officials say BBC News, https://www.bbc.com/news/world-us-canada-58738953 (last
      visited Dec 12, 2021)
      
      · Afghanistan: Joe Biden speech on withdrawal fact-checked BBC
      News, https://www.bbc.com/news/58412530 (last visited Dec 12, 2021)
      
      · Afghanistan: Black Hawks and Humvees – military kit now with the
      Taliban BBC News, https://www.bbc.com/news/world-asia-58356045 (last visited
      Dec 12, 2021).
      
      · Means: sudden defeat of a government through illegal force by a small
      group, often military one
      
      · coup d’état
      Dictionary.cambridge.org, https://dictionary.cambridge.org/dictionary/english/coup-d-etat
      (last visited Dec 12, 2021).
      
      · Consolidated List Sanctions List
      Un.org, https://www.un.org/french/sc/committees/consolidated.htm (last visited
      Dec 12, 2021)
      
      · Sanctions | United Nations Security Council
      Un.org, https://www.un.org/securitycouncil/sanctions/information (last visited
      Dec 12, 2021)
      
      · Assets.publishing.service.gov.uk, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957420/afghanistan.pdf
      (last visited Dec 12, 2021)
      
      · Foreign Terrorist Organizations – United States Department of State
      United States Department of
      State, https://www.state.gov/foreign-terrorist-organizations/ (last visited Dec
      12, 2021)
      
      · Fleeing Afghanistan: ‘Women are imprisoned, while the criminals are
      free’ BBC News, https://www.bbc.com/news/world-asia-59009470 (last visited Dec
      12, 2021)
      
      · THE CONSTITUTION OF AFGHANISTAN APRIL 9, 1923
      Dircost.unito.it, http://www.dircost.unito.it/cs/docs/AFGHANISTAN%201923.htm
      (last visited Dec 14, 2021)
      
      · THE CONSTITUTION OF AFGHANISTAN, 1964,
      Constituteproject.org, https://www.constituteproject.org/constitution/Afghanistan_1964.pdf?lang=en
      (last visited Dec 14, 2021)
      
      · Taliban to ‘temporarily’ adopt 1964 monarchy constitution The
      Hindu, https://www.thehindu.com/news/international/taliban-to-temporarily-adopt-monarchy-constitution-with-caveats/article36713113.ece
      (last visited Dec 14, 2021)
      
      · Grundorm by Hens Kelson || Jurisprudence ||
      Lawnotes4u, https://www.lawnotes4u.in/grundnorm-by-hens-kelsen-jurisprudence/
      (last visited Dec 14, 2021)
      
      · Mohammad Zahir Shah the
      Guardian, https://www.theguardian.com/news/2007/jul/23/guardianobituaries.afghanistan
      (last visited Dec 14, 2021)
      
      · THE CONSTITUTION OF AFGHANISTAN, 2004,
      Constituteproject.org, https://www.constituteproject.org/constitution/Afghanistan_2004.pdf?lang=en
      (last visited Dec 14, 2021)
      
      · Means: sudden defeat of a government through illegal force by a small
      group, often military one
      
      · coup d’état
      Dictionary.cambridge.org, https://dictionary.cambridge.org/dictionary/english/coup-d-etat
      (last visited Dec 12, 2021)
      
      · Papers relating to the foreign relations of the United States, 1930,
      Volume I – Office of the Historian
      History.state.gov, https://history.state.gov/historicaldocuments/frus1930v01/d366
      (last visited Dec 12, 2021)
      
      · Consolidated List Sanctions List
      Un.org, https://www.un.org/french/sc/committees/consolidated.htm (last visited
      Dec 12, 2021)
      
      · Hardliners get key posts in new Taliban government BBC
      News, https://www.bbc.com/news/world-asia-58479750 (last visited Dec 12, 2021)
      
      · Ohchr.org, https://www.ohchr.org/Documents/Issues/RuleOfLaw/NegativeEffectsTerrorism/NHRI-Afghanistan.pdf
      (last visited Dec 12, 2021)
      
      · OHCHR | Afghanistan: Journalists at risk of persecution need urgent
      protection – UN experts
      Ohchr.org, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27426&LangID=E
      (last visited Dec 12, 2021)
      
      · OHCHR | Afghanistan: Women’s full participation in public and political
      life is crucial
      Ohchr.org, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27468&LangID=E
      (last visited Dec 12, 2021)
      
      · [1] The teacher defying the Taliban on girls’ education BBC
      News, https://www.bbc.com/news/world-asia-59063624 (last visited Dec 12, 2021)
      
      · (Afghanistan: Taliban wasting no time in stamping out human rights says
      new briefing, 2021)
      
      · The Dilemma for Humanitarian Principles and the Taliban | The Centre
      Centre for Humanitarian
      Leadership, https://centreforhumanitarianleadership.org/the-centre/news/the-dilemma-for-humanitarian-principles-and-the-taliban/
      (last visited Dec 12, 2021)
      
      · OHCHR | Human Rights Council Expresses Grave Concern at All Violations
      and Abuses of Human Rights in Afghanistan and Stresses the Need for
      Investigation into Reports of Such Violations by All Parties
      Ohchr.org, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=27407&LangID=E
      (last visited Dec 12, 2021)
      
      · Afghanistan: How many refugees are there and where will they go? BBC
      News, https://www.bbc.com/news/world-asia-58283177 (last visited Dec 12, 2021)
      
      · Afghans race to flee Taliban regime The
      Hindu, https://www.thehindu.com/news/international/afghans-race-to-flee-taliban-regime/article36107354.ece
      (last visited Dec 12, 2021)
      
      · China welcomes new Taliban gov’t as the West expresses concerns
      Aljazeera.com, https://www.aljazeera.com/news/2021/9/8/world-reacts-as-taliban-announce-new-afghan-government
      (last visited Dec 12, 2021)
      
      · General Treaty of Peace and Amity, 1923 | UIA Yearbook Profile | Union
      of International Associations Uia.org, https://uia.org/s/or/en/1100045183 (last
      visited Dec 13, 2021)
      
      · CLS Pegasus Library
      Catalog, https://pegasus.law.columbia.edu/record/322640 (last visited Dec 13,
      2021)
      
      
      
      End Notes:
      
      [1] 1 Green Haywood Hackworth Digest of International Law 300 (The Government
      press office, Washington 1940)
      
      [2] The charge d’ affaires in France (Mariner) to Secretary Hull nos. 493 and
      1019, June 30 and July 3, 1934, MS. Department of state, files 890h.001 Zahir/4
      890h.001 Zahir/7: the Acting Secretary of state (Phillips) to president
      Roosevelt, Aug.21,1934, ibid, file 890h.01 Zahir/12; Mr. Phillips to the
      Ambassador in France (Straus), no 549, Aug. 28,1934 ibid. 890h.001 Zahir/13.
      
      [3] MS. Department of State, file 812.00/25133.
      
      [4] Nanni v. Pace and the sovereign order of Malta, Ann Dig., 1935 -37 case No.
1932. See also sovereign order of Malta v. Soc An. Comm., ILR 1955, p. 1; Scrfi v.
      Sovereign order of Malta., ILR 1957, p.1 holding that a contract between and
      Italian and the Order was bit subject to Italian law
      
      [5] See e.g., Oppenheim’s International Law 154 (Universal Publication 2003)
      
      [6] Rich , Recognition of state; the collapse of Yugoslavia and the Soviet Union
      ;4 EJIL. 1993 p.36.
      
      [7] See Sir Rabbet Jennings, Oppenheim’s International LAW, 9th ed. 169;
      Lauterpacht p.369-408
      
      [8] See Lauterpacht Recognition in Intranational (1947); Chen, The International
      law of recognition (1951);Jean Charpentier La Reconnaissance International et L’
      Evolution du Droit de Gens ( Paris,1956); Hans- Herbert Tauscher Die Vorzeitige
      Anerkennumg im Volkerrecht (1959); Dugard Recognition and the United
      Nations (1987).
      
      [9] 1 SIR Rabbet Jennings, Oppenheim’s International Law, 9th ed. 156
      (Universal Publication 2003)
      
      [10] Malcomn Shaw, International Law, 367-368 (Cambridge University press 2003)
      
      [11] Id. note 2.
      
      [12] IA Shearer, Starke’s International Law 117-125 (Oxford University press
      2020)
      
      [13] P.K. International law documents (universal Law publishing Co. Pvt. Ltd
      2003)
      
      [14] 1 H. A. Smith Great Britain and the law of nations, 77-80 (Oxford
      university press 1932)
      
      [15] J.L. Brierly, The Law of Nations, 6th edn. 88(Oxford university press 1998)
      
      [16] HERBERT W Briggs, The Law of Nations 543-577 (Cornel University 1947)
      
      [17] Id. note 15
      
      [18] IA Shearer, Starke’s International Law 125-140 (Oxford University press
      2020)
      
      [19] Resolution 35, The American Union Law and Treaty Series, No.23 The Bogota
      Charter of the O.A.S. is found in U.N.T.S. vol. 119 p.3; T.I.A.S. 2361.
      
      [20] Id. note 6
      
      [21] U.S. For. Rel. 1918, II, p.285.
      
      [22] 1 G.H. Hackworth, Digest of International Law 218 (The Government press
      Washington, 1940)
      
      [23] The Recognition Policy of United States since 1901 (1928) p. 97 et seq.
      
      [24] UN rep’, vol I, P. 369 at p.381(1923) in 1973 Jefferson with respect to the
      French Revolution laid down the policy that actual power and not constitutional
      legitimacy entitled a regime to be recognized.
      
      [25] 3 Mc Nair in law quarterly review 481 (Cambridge University Press 1937)
      
      [26] 2 Cambridge History of British foreign policy 45 (Cambridge University
      Press 1923)
      
      [27] J. P. Chamberlain, International Legislation. By Manley O. Hudson
      (Washington: Carnegie Endowment for International Peace. 1931. Four volumes. Pp.
      cxvii, 3218.), 26 American Political Science Review,748–750 (1932)
      
      [28] IV Manley O. Hudson, International legislation 2416 (Cambridge University
      press 1931) By January 1941 the convention was ratified by the following states;
      Brazil, Colombia, costa Rica, Cuba, Ecuador, Salvador Haiti, Mexico Nicaragua ,
      Panama , the Dominican Republic, the United states and Uruguay.
      
      
      
      [29] Lauterpacht, International law 271 (Cambridge University Press 1947)
      
      [30] Vol. III Hackworth. Digest of International Law 166-73 (Washington
      Government Printing Office 1942)
      
      [31] Means: sudden defeat of a government through illegal force by a small
      group, often military one
      
      coup d’état Dictionary.cambridge.org,
      https://dictionary.cambridge.org/dictionary/english/coup-d-etat (last visited
      Dec 12, 2021)
      
      [32] Papers relating to the foreign relations of the United States, 1930, Volume
      I – Office of the Historian History.state.gov,
      https://history.state.gov/historicaldocuments/frus1930v01/d366 (last visited Dec
      12, 2021)
      
      [33] 1 Green Haywood Hackworth, Digest of International 224 (United States
      Government printing office Washington 1940)
      
      [34] Ambassador Bliss to Secretary Stimson no. 124 and 126, September 7 and 9
      1930, M.S. Department of State, file 835.00 Revolutions/2 835.00 Revolutions/5;
      the acting secretary of state (cotton) to Mr. Bliss no. 100, Sept.
      11,1930, Ibid. 835.01/7.
      
      [35] According to Modern dictionary of international legal terms: coup d’état,
      also called coup, means the sudden, violent overthrow of an existing government
      by a small group.
      
      CLS Pegasus Library Catalog, https://pegasus.law.columbia.edu/record/322640
      (last visited Dec 13, 2021)
      
      [36] Minister Magennis to Secretary Colby, July 12, 19 and 20 and 1920 Ms.
      Department of state files 824.00/55, 824.00/67, 824.00/66; the acting secretary
      of state (Davis) to Mr. Magennis, Dec. 9,1920, ibid. file 82400/154c; 1920 For.
      Rel., Vol. I, pp. 372- 386.
      
      [37] 1 Green Haywood Hackworth, Digest of International 264-267 (United States
      Government printing office Washington 1940).
      
      [38] Id.
      
      [39] 1 Green Haywood Hackworth, Digest of International 271-273 (United States
      Government printing office Washington 1940).
      
      [40] Minister Howard to Secretary Hull, no. 21 of Feb. 19, 1936, no.22 of Feb.
      19, 1936, (4 p.m.) no. 24 of Feb. 20, 1936 (7 p.m.) MS. Department of state,
      files 834.00/794/795/796; Mr. Hull to Mr. Howard, nos.2 and 4, Feb.21 and Mar.3,
      1936 ibid 834.00/796, 834.01/12.
      
      [41] General Treaty of Peace and Amity, 1923 | UIA Yearbook Profile | Union of
      International Associations Uia.org, https://uia.org/s/or/en/1100045183 (last
      visited Dec 13, 2021)
      
      [42] 1 Green Haywood Hackworth, Digest of International 278-280 (United States
      Government printing office Washington 1940).
      
      [43] Minster Cappe to Secretary Polk, Nov. 15 and Dec.6,1920, MS. Department of
      states, files 868,001 C76/21; Mr. Cappa to Mr. Davis, Jan, 18 1921 ibid. files
      868.001 C76/22; Charge6 Hall to secretary Hughes, Mar. 16, 1921, ibid.868.001
      C76/32; 1921 For. Rel., Vol. II pp 138-150
      
      [44] 1 Green Haywood Hackworth Digest of International Law 286 (The Government
      Press Office, Washington 1940)
      
      [45] 1 Green Haywood Hackworth Digest of International Law 300 (The Government
      Press Office, Washington 1940)
      
      [46] The acting secretary of stat (Polk) to commissioner Heck Jan. 21, 1919, MS.
      Department of states, file 123H35/60a; 1919 For. Rel, Vol. II, pp.810-811.
      
      [47] Charege Amory to Secretary Keillog, no. 77 and 78 Oct.31 and Nov.1 1925 MS.
      Department of States, files 891,01/23. 891.0124; Mr. Kellog toMr. Amory, no. 53,
      Nov. 3, 1925, ibid. file 891.01 /25; Mr. Amory to Mr. Kellogg, no. 81, Nov. 5,
      1925, and Mr. Kellogg to Mr. Amory, no. 56, Nov. 5, 1925, ibid. 891.01 /27; Mr.
      Amory to Mr. Kellogg, no. 88, Dec. 15, 1925, and Mr. Kellogg to Mr. Amory, no.
      62, Dec. 16, 1925, ibid. 891.01 / 40.
      
      [48]Consolidated List Sanctions List Un.org,
      https://www.un.org/french/sc/committees/consolidated.htm (last visited Dec 12,
      2021)
      
      [49] Hardliners get key posts in new Taliban government BBC News,
      https://www.bbc.com/news/world-asia-58479750 (last visited Dec 12, 2021)
      
      [50] Ohchr.org,
      https://www.ohchr.org/Documents/Issues/RuleOfLaw/NegativeEffectsTerrorism/NHRI-Afghanistan.pdf
      (last visited Dec 12, 2021)
      
      [51] OHCHR | Afghanistan: Journalists at risk of persecution need urgent
      protection – UN experts Ohchr.org,
      https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27426&LangID=E
      (last visited Dec 12, 2021)
      
      [52] OHCHR | Afghanistan: Women’s full participation in public and political
      life is crucial Ohchr.org,
      https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27468&LangID=E
      (last visited Dec 12, 2021)
      
      [53] The teacher defying the Taliban on girls’ education BBC News,
      https://www.bbc.com/news/world-asia-59063624 (last visited Dec 12, 2021)
      
      [54] (Afghanistan: Taliban wasting no time in stamping out human rights says new
      briefing, 2021)
      
      [55] The Dilemma for Humanitarian Principles and the Taliban | The Centre Centre
      for Humanitarian Leadership,
      https://centreforhumanitarianleadership.org/the-centre/news/the-dilemma-for-humanitarian-principles-and-the-taliban/
      (last visited Dec 12, 2021)
      
      [56] OHCHR | Human Rights Council Expresses Grave Concern at All Violations and
      Abuses of Human Rights in Afghanistan and Stresses the Need for Investigation
      into Reports of Such Violations by All Parties Ohchr.org,
      https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=27407&LangID=E
      (last visited Dec 12, 2021)
      
      [57] Afghanistan: How many refugees are there and where will they go? BBC News,
      https://www.bbc.com/news/world-asia-58283177 (last visited Dec 12, 2021)
      
      [58] Afghans race to flee Taliban regime The Hindu,
      https://www.thehindu.com/news/international/afghans-race-to-flee-taliban-regime/article36107354.ece
      (last visited Dec 12, 2021)
      
      [59] China welcomes new Taliban gov’t as the West expresses concerns
      Aljazeera.com,
      https://www.aljazeera.com/news/2021/9/8/world-reacts-as-taliban-announce-new-afghan-government
      (last visited Dec 12, 2021)
      
      [60] G. Gopa Kumar, International Terrorism and Global Order in the
      21st Century 89 ( Kanishka publisher 2003)
      
      [61] Consolidated List Sanctions List Un.org,
      https://www.un.org/french/sc/committees/consolidated.htm (last visited Dec 12,
      2021)
      
      [62] Sanctions | United Nations Security Council Un.org,
      https://www.un.org/securitycouncil/sanctions/information (last visited Dec 12,
      2021)
      
      [63] Assets.publishing.service.gov.uk,
      https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957420/afghanistan.pdf
      (last visited Dec 12, 2021)
      
      [64] Foreign Terrorist Organizations – United States Department of State United
      States Department of State,
      https://www.state.gov/foreign-terrorist-organizations/ (last visited Dec 12,
      2021)
      
      [65] Fleeing Afghanistan: ‘Women are imprisoned, while the criminals are free’
      BBC News, https://www.bbc.com/news/world-asia-59009470 (last visited Dec 12,
      2021)
      
      [66] THE CONSTITUTION OF AFGHANISTAN APRIL 9, 1923 Dircost.unito.it,
      http://www.dircost.unito.it/cs/docs/AFGHANISTAN%201923.htm (last visited Dec 14,
      2021)
      
      [67] THE CONSTITUTION OF AFGHANISTAN, 1964, Constituteproject.org,
      https://www.constituteproject.org/constitution/Afghanistan_1964.pdf?lang=en
      (last visited Dec 14, 2021)
      
      [68] Taliban to ‘temporarily’ adopt 1964 monarchy constitution The Hindu,
      https://www.thehindu.com/news/international/taliban-to-temporarily-adopt-monarchy-constitution-with-caveats/article36713113.ece
      (last visited Dec 14, 2021)
      
      [69] Grundorm by Hens Kelson || Jurisprudence || Lawnotes4u,
      https://www.lawnotes4u.in/grundnorm-by-hens-kelsen-jurisprudence/ (last visited
      Dec 14, 2021)
      
      [70] Mohammad Zahir Shah the Guardian,
      https://www.theguardian.com/news/2007/jul/23/guardianobituaries.afghanistan
      (last visited Dec 14, 2021)
      
      [71] THE CONSTITUTION OF AFGHANISTAN, 2004, Constituteproject.org,
      https://www.constituteproject.org/constitution/Afghanistan_2004.pdf?lang=en
      (last visited Dec 14, 2021)
      
      [72] Art. 6 says the States shall create a prosperous and progressive
      society[72] which is based on social, economic and political justice, protection
      of human rights, realist on democracy attainment of national unity.
      
      [73] D. W. Bowett, The Law of International institutions 23-26 (Universal Law
      publication 2003)
      
      [74] Afghanistan: US-Taliban deal hastened Afghan collapse, defence officials
      say BBC News, https://www.bbc.com/news/world-us-canada-58738953 (last visited
      Dec 12, 2021)
      
      [75] Afghanistan: Joe Biden speech on withdrawal fact-checked BBC News,
      https://www.bbc.com/news/58412530 (last visited Dec 12, 2021)
      
      [76] Afghanistan: Black Hawks and Humvees – military kit now with the Taliban
      BBC News, https://www.bbc.com/news/world-asia-58356045 (last visited Dec 12,
      2021).
      
      [77] Means: sudden defeat of a government through illegal force by a small
      group, often military one
      
      coup d’état Dictionary.cambridge.org,
      https://dictionary.cambridge.org/dictionary/english/coup-d-etat (last visited
      Dec 12, 2021).

While removing every layer of cloud of doubt that was hovering over the question of jurisdiction of Special National Investigation Agency (NIA) Court, the Karnataka High Court in an extremely laudable, learned, landmark and latest judgment titled Sayyed Sohel Torvi v. National Investigating Agency in Writ Petition No. 19019 of 2021 and cited in 2022 LiveLaw (Kar) 358 that was pronounced finally on September 3, 2022 has held that the Special NIA Court is empowered to conduct trial for general offences punishable under Indian Penal Code if the FIR emanates from the very same transaction being probed by the NIA.

We see that a Single Judge Bench of Hon’ble Mr Justice M Nagaprasanna dismissed the petition that was filed by Sayyed Sohel Torvi who is an accused in the Bengaluru riots case of 2020. Sayyed had questioned the order of the Special Court that was dated September 30, 2021 by which his application made under Section 20 r/w Section 8 of the NIA Act for transfer of his case to the Court having jurisdiction to try offences was rejected. It is stated at the very beginning that:
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of CR.P.C., praying to set aside the impugned order dated 30.09.2021 which is arising out of the Special CC.No.141/2021 pending before the XLIX Addl. City Civil and Sessions Judge, (Special Court for NIA Cases) at Bangalore for the alleged offences under Section 120(B), 143, 145, 147 and 188 R/W 34 and 149 of IPC at Annexure F, consequently appreciate the application filed by the petitioner under Section 20 R/W 8 of NIA Act at Annexure D.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Karnataka High Court at Bangalore comprising of Hon’ble Mr Justice M Nagaprasanna sets the ball rolling by first and foremost putting forth in para 1 that:
The petitioner is before this Court calling in question order dated 30-09-2021 passed by the XLIX Additional Civil and Sessions Judge (Special Court for NIA Cases) at Bangalore in Spl.C.C.No.141 of 2021 by which the application filed by the petitioner seeking transfer of his case from the Special Court trying cases under the National Investigation Agency Act, 2008 (‘the Act’ for short) to the Court having jurisdiction to try IPC offences is rejected.

To put things in perspective, the Bench then envisages in para 2 that:
Brief facts that lead the petitioner to this Court in the subject petition, filtering out unnecessary details, are as follows:-

On 11-08-2020 at around 8-45 p.m. it is alleged, that a group of 25 to 30 people gathered in front of Kadugondana Halli (‘KG Halli’ for short) Police Station and started shouting slogans demanding arrest of one Naveen, nephew of Shri Akhanda Srinivasa Murthy, MLA who had posted certain derogatory message on his face-book account, which had generated such insult to the religious faith to those 25 to 30 people who belonged to a particular religion. At about 8.50 p.m. another group of people under the leadership of one Syed Ikramuddin entered KG Halli Police Station demanding registration of a case against the said Naveen and others. The police accepted the complaint and registered an NCR in the light of a preliminary enquiry being conducted for a crime registered in FIR No.195 of 2020 on the same set of fact by Devarajeevana Halli (‘DJ Halli’ for short) Police Station on 11.08.2020 itself.

As it turned out, the Bench then discloses in para 3 that:
The gathering at KG Halli Police Station increased tenfold and the mob alleged to have indulged in certain acts which resulted in registration of FIR against all those who were involved in the untoward incident that happened on that date. The Allegations initially made against several members of the mob including the petitioner were the ones punishable under Sections 120B, 143, 145, 147 and 188 r/w 34 and 149 of the IPC. After registration of crime, it appears that the police while investigating recorded statements of several witnesses. Pending filing of a final report, the Ministry of Home Affairs, Government of India by its order dated 21-09-2020 transferred the case to National Investigation Agency (‘NIA’ for short) and the NIA conducted fresh investigation or further investigation as the case would be and filed a charge sheet, in which the present petitioner is arrayed as accused No.137 for the offences punishable as afore-quoted.

While stating the cause for the petitioner filing this petition, the Bench then lays bare in para 4 that:
The case does not concern merit of accusations or the facts that led to registration of crime. In the said proceedings before the NIA Court, the petitioner files an application in terms of Section 20 r/w Section 8 of the Act seeking transfer of the case pertaining to him to the Court having jurisdiction to try general IPC offences and that he should not be tried before the NIA Court as there was no allegation that would touch upon the offences punishable under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’ for short) for the NIA Court to get jurisdiction to try non-UAPA offences. The Special Court by its order dated 30-09-2021 rejects the application on the ground that the Court did have power to try the offences both arising out of the IPC and that of UAPA if they arise of the same transaction or the same incident. It is this order that drives the petitioner to this Court in the subject petition.

Needless to say, the Bench after listening to all the sides then while speaking its mind observes frankly in para 9 that:
I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance thereof, the only issue that falls for my consideration is:

‘Whether the NIA Court is empowered to conduct trial of offences alleged, which are the ones punishable under the IPC as well, in the facts of the case?’

Briefly stated, it is vital to note that the Bench then observes in para 10 that:
The afore-quoted facts that led to registration of the crime being a matter of record are not reiterated. For consideration of the aforesaid issue, it is germane to notice the provisions of the NIA Act, UAPA and the CrPC. The petitioner is alleged of offences punishable under Section 120B IPC or of the other offences that are relating to formation of an unlawful assembly. Section 8 of the Act reads as follows:

8. Power to investigate connected offences:
While investigating any Scheduled Offence the Agency may also investigate any other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence. (Emphasis supplied)

Section 8 directs that if an offence is connected with the scheduled offence appended to the Act, such offence can be investigated by the NIA, as Section 8 deals with power to investigate connected offences. Therefore, the offence that is alleged should have been committed by the accused and the other offence i.e., the general offence should be in connection with the alleged offence under the Act.

Section 13 of the Act deals with jurisdiction of the Special Court and reads as follows:
13. Jurisdiction of Special Courts:

1. Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.
2. If, having regard to the exigencies of the situation prevailing in a State if:
   
   1. it is not possible to have a fair, impartial or speedy trial; or
   2. it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a judge of the Special Court or any of them; or
   3. it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.
3. The Supreme Court or the High Court, as the case may be, may act under this section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.

Section 14 of the Act deals with powers of Special Courts with respect to other offences and reads as follows:

14 Powers of Special Courts with respect to other offences:

1. When trying any offence, a Special Court may also try any other offence with which the accused may, under the Code be charged, at the same trial if the offence is connected with such other offence.
    
2. If, in the course of any trial under this Act of any offence, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorised by this Act or, as the case may be, under such other law. (Emphasis supplied)

Section 14(1) directs that the Special Court may also try any other offence with which the accused under the Code is charged at the same trial if the offence is connected with other offences that the accused is charged with.

Section 20 of the Act deals with power to transfer cases to regular courts and reads as follows:
20. Power to transfer cases to regular courts:
Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.

Section 20 empowers NIA Court to transfer cases which are before the Special Court to regular Courts. The application filed by the petitioner is under Section 20 of the Act.

Section 18 of the UAPA which deals with conspiracy reads as follows:
18. Punishment for conspiracy, etc.:
Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Section 18 (supra) deals with punishment for conspiracy. The petitioner is not charged of conspiracy under UAPA but the allegation against the petitioner is the one punishable under Section 120B of the IPC which deals with punishment for criminal conspiracy.

In short, in this same para 10, the Bench then spells out that:
It is now germane to notice Section 223 of the CrPC which deals with what persons may be charged jointly. For sake of brevity, I am not spelling out the entire Section 223 here. We need to note that the Bench then specifies that:
If a particular offence concerns two or more people which arise out of the same transaction, they can be tried together in terms of Section 223 of the CrPC. This is the broad framework of the provisions of law involved to arrive at a resolution of the dispute in the lis.

Be it noted, the Bench then enunciates in para 11 that:
It is not in dispute that the petitioner is not charged with Section 18 of the UAPA which deals with punishment for conspiracy but is charged under Section 120B read with Sections 143, 145 and 147, 188 and 34 of the IPC. Therefore, all the offences against the petitioner are the ones punishable under the IPC. It is no doubt true that the NIA Court can try only the offences that are appended to its schedule. Schedule appended to Section 2(1)(f) of the Act depicts offences falling under the following Acts to be triable by the NIA Court and it reads as follows:-

THE SCHEDULE

[See section 2(1) (f)]

1. The Explosive substances Act, 1908 (6 of 1908);
   1-A. The Atomic Energy Act, 1962 (33 of 1962
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under:
   
   1. Chapter VI of the Indian Penal Code (45 of 1860) [sections 121 to 130 (both inclusive)];
   2. Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860);
   3. Sections 489A to 489E (both inclusive) of the Indian Penal Code (45 o 1860);
   4. Sib-section (1-AA) of Section 25 of Chapter V of the Arms Act, 1959 (54 of 1959); and
   5. Section 66-F of Chapter XI of the Information Technology Act, 2000 (21 of 2000).

The offences under the UAPA are one of the provisions that become triable before the NIA Court. Admittedly, the petitioner is not charged with the offences under the UAPA and is charged with the offences under the IPC. Therefore, the question is whether the petitioner can be tried by the NIA Court for the IPC offences.

It is worth noting that the Bench then while citing a catena of relevant case laws observes in para 12 that:
It now becomes germane to notice the judgments rendered by the Apex Court which consider amalgam of offences emanating from two different enactments being tried by one common Court qua the offences arising out of the same transaction or facts. The Apex Court right from the case of VIVEK GUPTA (2003) 8 SCC 628 (supra) has considered this very issue. The Apex Court in the said judgment has held as follows:

13. Section 223 of the Code of Criminal Procedure has not been excluded either expressly or by necessary implication nor has the same been modified in its application to trials under the Act. The said provision therefore is applicable to the trial of an offence punishable under the Act. The various provisions of the Act which we have quoted earlier make it abundantly clear that under the provisions of the Act a Special Judge is not precluded altogether from trying any other offence, other than offences specified in Section 3 thereof. A person charged of an offence under the Act may in view of sub-section (3) of Section 4 be charged at the same trial of any offence under any other law with which he may, under the Code of Criminal Procedure, be charged at the same trial. Thus a public servant who is charged of an offence under the provisions of the Act may be charged by the Special Judge at the same trial of any offence under IPC if the same is committed in a manner contemplated by Section 220 of the Code.

14. The only narrow question which remains to be answered is whether any other person who is also charged of the same offence with which the co-accused is charged, but which is not an offence specified in Section 3 of the Act, can be tried with the co-accused at the same trial by the Special Judge. We are of the view that since sub-section (3) of Section 4 of the Act authorizes a Special Judge to try any offence other than an offence specified in Section 3 of the Act to which the provisions of Section 220 apply, there is no reason why the provisions of Section 223 of the Code should not apply to such a case. Section 223 in clear terms provides that persons accused of the same offence committed in the course of the same transaction, or persons accused of different offences committed in the course of the same transaction may be charged and tried together. Applying the provisions of Sections 3 and 4 of the Act and Sections 220 and 223 of the Code of Criminal Procedure, it must be held that the appellant and his co-accused may be tried by the Special Judge in the same trial.

15. This is because the co-accused of the appellant who have been also charged of offences specified in Section 3 of the Act must be tried by the Special Judge, who in view of the provisions of subsection (3) of Section 4 and Section 220 of the Code may also try them of the charge under Section 120-B read with Section 420 IPC. All the three accused, including the appellant, have been charged of the offence under Section 120-B read with Section 420 IPC. If the Special Judge has jurisdiction to try the co-accused for the offence under Section 120-B read with Section 420 IPC, the provisions of Section 223 are attracted. Therefore, it follows that the appellant who is also charged of having committed the same offence in the course of the same transaction may also be tried with them. Otherwise it appears rather incongruous that some of the conspirators charged of having committed the same offence may be tried by the Special Judge while the remaining conspirators who are also charged of the same offence will be tried by another court, because they are not charged of any offence specified in Section 3 of the Act.

16. Reliance was placed by the respondent on the judgment in Union of India v. I.C. Lala [(1973) 2 SCC 72 : 1973 SCC (Cri) 738 : AIR 1973 SC 2204] but the counsel for the appellant distinguished that case submitting that the facts of that case are distinguishable inasmuch as in that case apart from the two army officers, even the third appellant who was a businessman, was charged of the offence punishable under Section 120-B IPC read with Section 5(2) of the Act. Such being the factual position in that case, Section 3(1)(d) of the relevant Act was clearly attracted. In the instant case he submitted, there was no charge against the appellant of having conspired to commit an offence punishable under the Act. The aforesaid judgment refers to an earlier decision of this Court in the case of State of A.P. v. Kandimalla Subbaiah [AIR 1961 SC 1241 : (1961) 2 Cri LJ 302] . The learned counsel for the appellant distinguishes that case also for the same reason, since in that case as well the respondent was charged of conspiracy to commit an offence punishable under the Act.

17. We are, therefore, of the view that in the facts and circumstances of this case, the Special Judge while trying the co-accused of an offence punishable under the provisions of the Act as also an offence punishable under Section 120-B read with Section 420 IPC has the jurisdiction to try the appellant also for the offence punishable under Section 120-B read with Section 420 IPC applying the principles incorporated in Section 223 of the Code. We, therefore, affirm the finding of the High Court and dismiss this appeal. (Emphasis supplied)

The Apex Court in the said judgment holds that the appellant therein, though is charged of offences under a particular enactment, is to be tried with other persons who are alleged to have incurred offences under two enactments as they are arising out of the same transaction. Later the Apex Court in the case of ESSAR TELEHOLDINGS LIMITED (2013) 8 SCC 1 (supra) has held as follows:

17. A mere perusal of Section 3 read with Section 4 of the PC Act clearly mandates that apart from an offence punishable under the PC Act, any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the PC Act can also be tried by a Special Judge. Subsection (3) of Section 4 specifies that when trying any case, a Special Judge can also try any offence, other than an offence specified in Section 3, with which the accused may, under CrPC, be charged at the same trial.

… … …

19. Section 22 of the PC Act provides that provisions of CrPC, shall in their application to any proceeding in relation to an offence punishable under the Act to apply subject to certain modifications. It is, therefore, apparent that the provisions of CrPC are to be applied to trials for offence under the PC Act, subject to certain modifications.

… … …

25. Admittedly, the co-accused of 2G Scam case charged under the provisions of the Prevention of Corruption Act can be tried only by the Special Judge. The petitioners are co-accused in the said 2G Scam case. In this background Section 220 CrPC will apply and the petitioners though accused of different offences i.e. under Sections 420/120-B IPC, which alleged to have been committed in the course of 2G Spectrum transactions, under Section 223 CrPC they may be charged and can be tried together with the other co-accused of 2G Scam cases. (Emphasis supplied)

The Apex Court in the case of JITENDER KUMAR SINGH (2014) 11 SCC 724 (supra) has held as follows:
33. We may now examine the scope of subsection (3) of Section 4 of the PC Act, which indicates that when trying any case, which means trying any case relating to the offences referred to in Sections 3(1)(a) and (b) of the PC Act for which exclusive jurisdiction is conferred on the Special Judge. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. An accused, in a given case, may be charged under the Code of Criminal Procedure on an offence being committed under IPC and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under IPC or any other legislation. Conspiracy to commit any offence either under the PC Act or under IPC is a separate offence and has to be separately charged and tried. For example, the conspiracy to commit offence punishable under the PC Act itself is an offence to be tried only by a Special Judge. In Ajay Aggarwal v. Union of India [(1993) 3 SCC 609 : 1993 SCC (Cri) 961] , the Court held as follows : (SCC p. 618, para 11)

11. … Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.

Reference may also be made to the judgments of this Court in Sanichar Sahni v. State of Bihar [(2009) 7 SCC 198 : (2009) 3 SCC (Cri) 347] and Mohd. Arif v. State (NCT of Delhi) [(2011) 13 SCC 621 : (2012) 2 SCC (Cri) 766].

34. In other words, an accused person, either a public servant or non-public servant, who has been charged for an offence under Section 3(1) of the PC Act, could also be charged for an offence under IPC, in the event of which, the Special Judge has got the jurisdiction to try such offences against the public servant as well as against a non-public servant. The legal position is also settled by the judgment of this Court in Vivek Gupta v. CBI [(2003) 8 SCC 628 : 2004 SCC (Cri) 51] , wherein this Court held that a public servant who is charged of an offence under the provisions of the PC Act may also be charged by the Special Judge at the same trial of any offence under IPC if the same is committed in a manner contemplated under Section 220 of the Code. This Court also held, even if a non-public servant, though charged only of the offences under Section 420 and Section 120-B read with Section 420 IPC, he could also be tried by the Special Judge with the aid of sub-section (3) of Section 4 of the PC Act. We fully endorse that view. (Emphasis supplied)

Following the said judgments, the Apex Court in the case of HCL INFOSYSTEM LIMITED (2016) 9 SCC 281 (supra) has held as follows:

10. As already stated, the High Court held that the Special Judge could continue proceedings against the appellants even after the death of public servant and even if there was no charge under the PC Act. The High Court duly considered the effect of death of the sole public servant. The contention raised by the appellant in the first case was that the charges against it were under Section 120-B read with Sections 409 and 420 IPC and Section 13(1)(d) read with Section 13(2) of the PC Act. There is no independent PC Act charge against it. Thus, only for non-PC Act charges, proceedings could not continue before the Special Judge. On this aspect, it was observed that the charge could be amended and challenge was premature apart from the fact that the Special Judge was competent to deal with the nonPC Act cases relating to the NRHM Scam. The relevant observations in this regard are : (HCL Infosystem Ltd. case [HCL Infosystem Ltd. v. CBI, 2015 SCC OnLine All 6522] , SCC OnLine All paras 39-40 & 43-44)

39. There is one thing which deserves mention at this very stage is that the possibility of amendment in the charges and addition thereto keeping in view the nature of the allegations cannot be ruled out in future. This, therefore, would be a premature stage to presume that no other offence can be tried by the Special Court. The offences in relation to a non-government servant which connect him with the conspiracy of misappropriation of public funds with the aid of a government servant, would not vanish merely because the government servant has died. This would clearly depend upon the evidence and the facts of the case that would ultimately determine the framing of the charge and its consequential trial. Not only this, the Court has ample powers to add charges even during the course of the trial.

40. From a perusal of the FIR, charge-sheet and cognizance order, it may not be said at this stage that no offence under the Prevention of Corruption Act has been committed by the applicant. The cognizance is taken of the offence and not of the person. The charges are framed in relation to the offence committed which are tried. The question is of the link of a non-government servant to such an offence which may be relatable to the Prevention of Corruption Act, 1988. In the instant case, the material on record does indicate prima facie such connection whereas in State v. Jitender Kumar Singh [State v. Jitender Kumar Singh, (2014) 11 SCC 724 : (2014) 3 SCC (Cri) 512 : (2014) 2 SCC (L&S) 843] which has been relied upon by the learned counsel for the applicant, the Apex Court came to a conclusion that there was no offence under the Prevention of Corruption Act for being tried as against the non-government servants involved therein that arose out of the Bombay case [CBI v. Sham B. Bhatia, 2009 SCC OnLine Bom 2331] as discussed in the said judgment. In the circumstances, it would be absolutely premature to presume on the facts of the present case of there being no evidence or linkage as suggested by the learned counsel for the petitioner when prima facie a charge-sheet and the cognizance order do disclose such links.

***

43. Applying the aforesaid principles on the facts of the present case, it is clear that there are clear allegations and also evidence prima facie collected to indicate conspiracy that connect the acts and omissions of late Shri G.K. Batra, the government servant, with the applicant company and its officials and agents who got themselves introduced in the manner indicated in the charge-sheet along with the active aid of late Shri G.K. Batra. Consequently, all arguments that have been advanced by Shri Chaturvedi on the strength of the judgment in State v. Jitender Kumar Singh [State v. Jitender Kumar Singh, (2014) 11 SCC 724 : (2014) 3 SCC (Cri) 512 : (2014) 2 SCC (L&S) 843] do not come to his aid as the facts of the present case are not identical except for the similarity of the death of the government servant. Consequently, the second argument also does not hold water.

44. In view of the conclusions drawn hereinabove, the order impugned dated 28-2-2015 is upheld and the proceedings before Shri Atul Kumar Gupta are treated to be well within his jurisdiction in all NRHM cases. In order to remove any doubt in this regard it is further directed that Shri Atul Kumar Gupta would continue to have jurisdiction over such cases till his successor joins on the said post. It may also be put on record that according to the annual list of transfer and posting Shri Atul Kumar Gupta is under orders of transfer, but on account of no fresh notification for the Court occupied by him, his transfer order is under abeyance till his successor joins.

11. The only contention raised by Shri C.U. Singh, learned Senior Counsel for the appellant is that public servant having died before framing of the charge, the appellant could not be tried by the Special Judge. He did not challenge any other finding in the impugned order except those relevant to this contention. Shri Singh submits that the case of the appellant M/s HCL Infosystem Ltd. is fully covered by the judgment of this Court in State v. Jitender Kumar Singh [State v. Jitender Kumar Singh, (2014) 11 SCC 724 : (2014) 3 SCC (Cri) 512 : (2014) 2 SCC (L&S) 843] . Particular reliance was placed on para 46 of the judgment. It was submitted that the trial in a warrant case commenced on framing of the charge which has not yet happened and the public servant had died. The appellant could be tried only during the lifetime of the public servant. Having regard to the fact that the public servant has died before the framing of the charge, this Court upheld the view of the Special Judge, CBI, Greater Mumbai in forwarding the papers of the case to the Chief Judicial Magistrate.
… … ..

15. In the present case, the Special Court in question has been constituted not only to deal with the cases of the PC Act but also other cases relating to the NRHM Scam. The procedure of the Code of Criminal Procedure is applicable to trial before the Special Judge and there is no prejudice to trial that is taking place before the Special Judge duly appointed to deal with non-PC cases when the object of doing so was to try connected cases before the same court. Undoubtedly, while the Special Judge alone could deal with cases under the PC Act, non-PC Act could also be allowed to be tried by the Special Judge under Section 26 of the Code of Criminal Procedure. There is no legal bar to do so, as held by this Court in Essar Teleholdings Ltd. [Essar Teleholdings Ltd. v. Delhi High Court, (2013) 8 SCC 1: (2013) 3 SCC (Cri) 744: (2014) 1 SCC (L&S) 51]. (Emphasis supplied)

Long before the afore-quoted judgments of the Apex court, the Apex Court in the case of KADIRI KUNHAHAMMAD v.STATE OF MADRAS AIR 1960 SC 661 has held as follows:

5. Mr Purshottam then argues that even if the joint trial may be justified it was not open to the prosecution to charge the appellant at such a joint trial with the commission of a specific act of breach of trust as alleged in charge six. This argument is wholly untenable. Under Section 235(1), if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for, every such offence. Whereas Section 239(d) allows a joinder of persons at a criminal trial, Section 235(1) allows joinder of charges subject to the conditions mentioned respectively in the said two provisions. In other words, these provisions constitute an exception to the provisions of Section 233 as well as those under Section 234(2). There is, therefore, no doubt that, in a case of conspiracy, if specific offences are committed in pursuance of the said conspiracy, all persons who are parties to that conspiracy and are also concerned in the specific offences thus committed can be lawfully tried jointly at the same trial. (Vide: Rash Behari Shaw (Handa) v. Emperor [AIR 1936 Cal 753].) (Emphasis supplied).

Quite ostensibly, the Bench then hastens to add in para 13 that:
On a coalesce of the judgments rendered by the Apex Court in the aforesaid judgments what would unmistakably emerge is that Section 223 of the CrPC which was Section 239(d) of the old Code allows joinder of persons at a criminal trial and Section 235(1) allows joinder of charges subject to the conditions mentioned in the two provisions.

Most significantly, the Bench then minces no words to hold in para 14 that:
In the case at hand, it is not in dispute that the petitioner is part of the mob that had indulged in acts which become punishable under the IPC and UAPA. Therefore, under Section 223 of the CrPC, the two offences would become triable by the NIA Court. Section 14 of the Act empowers the Court to try any other offence with which the accused may, under the Code be charged, at the same trial, if the offence is connected with such other offence. If, in the course of any trial under the Act of any offence, it is found that the accused person has committed any other offence under the Act or any other law, the Special Court may convict such person of such other offence and pass any sentence or award punishment authorized by the Act.

Equally significant is what is then unmistakably held in para 15 that:
On a conjoint reading of Section 14 of the Act, Section 223 of the CrPC and the judgments rendered by the Apex Court, what would unmistakably emerge is that the petitioner can also be tried by the NIA Court, notwithstanding the fact that the offences alleged against the petitioner are the ones under the Code, in the light of the fact that they arose out of the very same transaction. The contention in the case at hand is akin to what was contended before the Apex Court in the aforequoted judgments. The Apex Court having negatived those submissions made by those appellants covers the contentions advanced by the learned counsel appearing for the petitioner in the case at hand. Though in the first blush the submission of the learned counsel for the petitioner would sound acceptance, on a deeper delving into the matter and the fact that the Apex Court has answered similar issues, I decline to accept the contention of the learned counsel for the petitioner.

Finally, the Bench then aptly concludes by holding in para 16 that:
In the result, I do not find any error in the order of the Special Court declining to transfer the case from its hands to the jurisdictional Court that would be trying IPC offences owing to the peculiar facts of the case. The petition is accordingly dismissed.

In a nutshell, the Karnataka High Court has left no stone unturned to make it indubitably clear that Special Court is empowered to try general IPC offences arising out of cases probed by the NIA. The petition of petitioner thus fails to cut ice for reasons as aforesaid and so thus stands dismissed. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh

It definitely cannot be lightly dismissed by anyone, least of all by the Centre and most of all by the petitioners when none other than the Jammu and Kashmir High Court itself and that too not a Single Bench but by a Division Bench comprising of Hon’ble Mr Justice Ali Mohammad Magrey and Hon’ble Mr Justice Mohd. Akram Chowdhary in a most laudable, learned, landmark and latest judgment titled Tabasum Mir Vs Union of India in WP (C) No. 802/2021 along with connected matters and cited in 2022 LiveLaw (JKL) 161 minced absolutely just no words to observe that money stashed abroad by evading tax could be used in ways which could threaten national security.

This definitely cannot be taken for granted at any cost and under any circumstances! The Court made these observations in six petitions filed through senior Apex Court counsel P Chidambaram challenging the validity of the notices dated July 6, 2018 issued by the respondents (Union of India, Finance Department, Commissioner of Income Tax, New Delhi, and Deputy Director of Income Tax (Investigation) Investigation Wing under Section 10 (1) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 as also show cause notices dated March 18, 2021. The petitioners had also challenged the penalty notices dated March 29, 2021, assessment orders dated March 31, 2021 and demand notices dated March 31, 2021.

It must be stated that in their plea, the petitioners claimed to be beneficiaries of Mondale Irrevocable Discretionary Trust which was created and established abroad in Bangkok, Thailand. The petitioners brought money of their share in India upon permission granted by the Reserve Bank of India. In the meantime, Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 was enforced with effect from 1st of April 2015 or 1st of July 2015. In view of the said Act, a notice under Section 10(1) and thereafter under Section 10(2) were issued requiring certain information from the petitioners. The plea stated that the said notice was duly replied as required by the petitioners, but till date, no order of assessment as contemplated under Section 10 has been passed against the petitioners.

While holding the petitions as not maintainable as petitioners had not exhausted the remedy available in the legislation, the Court granted liberty to the petitioners to challenge the same before the appellate authority. The Division Bench while adjudicating upon the matter observed that tax evasion puts a disproportionate burden on the honest taxpayers as they have to bear the brunt of higher taxes to make up for the revenue leakage caused by the evasion. The Court made no bones that stashing away of black money abroad by some people with the intent to evade taxes has been a matter of deep concern to the nation. It also observed that evasion of tax robs the nation of critical resources necessary to undertake programs for social inclusion and economic development.

1. Common questions of fact and the law:
   At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Ali Mohammad Magrey for a Division Bench of Jammu and Kashmir and Ladakh High Court comprising of Hon’ble Mr Justice Mohd. Akram Chowdhary and himself sets the ball rolling by first and foremost putting forth in para 1 that:
   Since common questions of fact and the law are involved in all these connected six Petitions, therefore, same, after having been heard together, are being decided by this common order.
    
2. Nature of Challenge thrown:
   Simply put, the Division Bench then states in para 2 that:
   In the first 03 Writ Petitions, being WP (C) Nos. 594/2021; 596/2021; and 597/2021, the Petitioners have assailed the validity of the notices dated 6th of July, 2018 issued by the Respondents under Section 10 (1) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (for short ‘the Act of 2015’) as also show cause notices dated 18th of March, 2021. Thereafter, by medium of Writ Petitions bearing WP (C) Nos. 802/2021; 803/2021 and 806/2021, the Petitioners have challenged the penalty notices dated 29th of March, 2021, assessment orders dated 31st of March, 2021 and demand notices dated 31st of March, 2021.
    
3. Genesis of the present litigation:
   To put things in perspective, the Division Bench then envisages in para 3 that, One Abdul Rashid Mir had three children, namely, Late Mujeeb Mir; Late Sabeha Mir; and Tabasum Mir. Late Mujeeb Mir is stated to have been a citizen of India who, however, primarily lived outside India since his childhood and his primary place of residence was at Bangkok, Thailand. The said Mujeeb Mir is claimed to be a Non-Resident Indian for the purpose of Income Tax Act, 1961 (hereinafter referred to as ‘the Act of 1961’) since 1990. On 22nd of March, 2002, without the knowledge to the Petitioners, the said Late Mujeeb Mir issued letter of instructions to M/s Trumax Nominees Limited for establishment of trust to be called the ‘Mondale Irrevocable Discretionary Trust’. On 8th of October, 2002, without the knowledge of the Petitioners, the said Mujeeb Mir settled ‘Mondale Irrevocable Discretionary Trust’ with Trumax Company Limited, a Company incorporated under the Laws of Isle of Man to act as Trustees for the Trust. On 8 th of October, 2002, without the knowledge of the Petitioners, the said Mujeeb Mir subscribed to the entire share capital of the Company Mondale SA that was incorporated under the laws of Republic of Panama and transferred the said shares to ‘Mondale Discretionary Trust’.
   
   On 9th of October, 2002, without the knowledge of the Petitioners, the said Mujeeb Mir excluded the erstwhile beneficiaries (a Wildlife Sanctuary) and made his siblings, namely, Tabasum Mir (Sister); Ms Sabeha Mir (Sister); and his first cousin brother-Amir Mir as the beneficiaries of ‘Mondale Discretionary Trust’. On 31st of January, 2005, the said Mujeeb Mir passed away and his father-Abdul Rashid Mir was appointed as the Manager of the Estate of his deceased son pursuant to orders passed by the Courts in Thailand. On 11th of September, 2007, a deed of appointment and indemnity was entered between Trumax Company Limited (Trustees) and Abdul Rashid Mir representing the beneficiaries. Through Abdul Rashid Mir, the Petitioners learnt that there were three beneficiaries.
   
   The deed, inter alia, stated that ‘the Trustee hereby irrevocably appoints to the Beneficiaries in equal shares absolutely the appointed fund for their own absolute use and benefit freed and discharged from all the trusts of the Trust’. On 2nd of January, 2008, the Stabitrust Fiduciaries Limited were appointed as Trustee of the Mondale Trust as successor Trustee to Trumax. On 18th of January, 2010, beneficial interest in bank account of Mondale S. A. operating with Banque Baring Brothers Sturdza SA, Geneva was transferred to the beneficiaries of the trust. On 4th of March, 2010, the Petitioners wrote to the Reserve Bank of India and disclosed the creation of Mondale Discretionary Trust by Late Mujeeb Mir and apprised them about the inheritance on account of his demise.
   
   Furthermore, permission was sought under Section 6(5) of the Foreign Exchange Management Act, 1999 to hold securities in a foreign company (Mondale SA) and consequent beneficial interest in a foreign bank account. On 5th of April, 2010, the Reserve Bank of India replied to the letter of one of the Petitioners and referred to Master Circular No. 01/2009-10 which, inter alia, provided that a general permission has been granted to resident of India to hold foreign securities and to acquire shares by way of inheritance from a person resident out of India. On 28th of January, 2011, the balance lying with the foreign bank account (1/3rd share) was declared in the Wealth Tax Return for the Accounting Year (AY) 2010-11 and Accounting Year (AY) 2011-12 of the Petitioners.
   
   On 4th of July, 2011, Rs. 5,92,64,869/, being 1/3rd share of each of the Petitioner, was remitted from the bank account of Mondale SA to India. On 6th of July, 2011, the Jammu and Kashmir Bank Limited issued certificate of Foreign Inward Remittance specifying the remittance of money on account of the dissolution of the trust and 1/3rd of inheritance. In April, 2016, the Panama Paper Leaks Article was published in Indian Express newspaper giving names of various individuals reportedly having foreign assets. Thereafter, income tax proceedings under Section 131 (1-A) of the Act of 1961 initiated against the Petitioners seeking details of foreign assets. Information as called for was provided by the Petitioners.
   
   On 6th of July, 2018, notice under Section 10(1) of the Act was issued to the Petitioners seeking various details. On 2nd of August, 2018, the Petitioners submitted information in response to the documents called for by the authorities which, inter alia, included information about receipt of money from the trust settled by Late Mujeeb Mir. On 29th of March, 2019, notice under Section 148 of the Act of 1961 was issued to the Petitioners for reopening of assessment for Account Year (AY) 2012-13. On 19th of April, 2019, the Petitioners sought reasons for reopening of the assessment. On 7th of September, 2019, no response was received by the Petitioners, however, fresh letter was issued seeking further documents.
   
   On 18th of October, 2019, the Petitioners filed response to the above and again sought reasons for reopening of assessment. On 20th of November, 2019, notice under Section 10(2) of the Act was issued to the Petitioners asking to produce all relevant documents. The Petitioners sought two adjournments. On 16th of October, 2020, copies of wealth tax returns submitted by the Petitioners for Accounting Year (AY) 2010-11 as directed by the Deputy Director of Income Tax (Investigation), Srinagar.
   
   Thereafter, notice for personal deposition of the Petitioners issued by the Deputy Director of Income Tax (Investigation), Srinagar under Section 8 of the Act of 2015. On 9th of February, 2021, additional details as called for by the Deputy Director of Income Tax (Investigation), Srinagar were submitted by the Petitioners. On 22nd of February, 2022, the Petitioners filed a detailed reply to the notice under Section 10(1) of the Act dated 6th of July, 2018.
   
   On 3rd of March, 2021, clarification submitted by the Petitioner to Deputy Director of Income Tax (Investigation), Srinagar that the reply to RBI application received only for Mr Amir Mir and, on follow-up with RBI, they were informed that same guidelines apply to other applicants/ Petitioners. On 18th of March, 2021, show cause notice was issued to the Petitioners by the Deputy Director of Income Tax (Investigation) pursuant to filing of the reply dated 23rd of February, 2021.
   
   The Petitioners filed three separate Writ Petitions bearing WP (C) Nos. 594/2021; 596/2021; and 597/2021 before this Court challenging the notices issued under Section 10(1) of the Act dated 6th of July, 2018 as also the show cause notices dated 18th of March, 2021. On 29th of March, 2021, this Court passed order directing the Respondents to go ahead with the assessment, but not to proceed with prosecution and penalty proceedings. On 29th of March, 2021, the Petitioners received three notices each dated 29th of March, 2021 under Section 46 read with Sections 41, 42 and 43 of the Act of 2015, respectively, for imposition for penalty.
   
   On 31st of March, 2021, vide the assessment Orders dated 31st of March, 2021, the Petitioners were assessed to tax under Section 10 of the Act of 2015 and the total value of undisclosed foreign assets was determined and total tax, accordingly, computed to be paid on account of said undisclosed foreign assets. On 31st of March, 2021, demand notice dated 31st of March, 2021 was issued directing the Petitioners to pay the tax determined within a period of 30 days. Thereafter, penalty notices dated 29th of March, 2021, the assessment orders dated 31st of March, 2021 and demand notices dated 31st of March, 2021 were challenged by the Petitioners through WP (C) Nos. 802/2021; 803/2021 and 806/2021.
    
4. Details of the Writ Petitions:
   What merits attention is that the Bench then notes in para 4 that:
   In WP (C) No. 594/2021, the Petitioner, namely, Tabasum Mir, has contended that she is a beneficiary of a Trust which was created and established abroad. The Petitioner brought benefit/money of her share in the country upon permission granted by the Reserve Bank of India. In the meantime, Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (hereinafter referred to as the Act of 2015) has been enforced with effect from 1st of April 2015 or 1st of July 2015. In view of the said Act, a notice under Section 10(1) and thereafter under Section 10(2) were issued requiring certain information from the Petitioner.
   
   The said notice was duly replied by the Petitioner, but till date, no order of assessment as contemplated under Section 10 has been passed against the Petitioner. At the same time, a further show cause notice dated 18th of March 2021 has been issued requiring the Petitioner to show cause why in respect of some of the assets, the Petitioner should not be taxed under the Act and penalties and prosecution be launched against her. It is averred that the aforesaid show cause notice is neither a notice issued under Section 10 nor a notice under any other provisions of the Act and, as such, is without jurisdiction. The Petitioner cannot be prosecuted and saddled with penalties without there being the assessment order passed under Section 10.
   
   For paucity of space one is constrained to not mention the details of all the writ petitions.
    
5. Discussion and Analysis:
   Most significantly, the Division Bench then minces no words to hold in para 27 that:
   Before going into the merits of the case, it shall be advantageous to have a glance at the genesis of the Act of 2015. Stashing away of black money abroad by some people with the intent to evade taxes has been a matter of deep concern to the nation. Black Money is a common expression used in reference to tax-evaded income. Evasion of tax robs the nation of critical resources necessary to undertake programs for social inclusion and economic development.
   
   It also puts a disproportionate burden on the honest taxpayers as they have to bear the brunt of higher taxes to make up for the revenue leakage caused by evasion. The money stashed away abroad by evading tax could also be used in ways which could threaten the National Security. Recognising the limitations of the existing legislation, a new legislation (the Act of 2015) was proposed to deal with undisclosed assets and income stashed away abroad. Hon’ble the Supreme Court has also expressed concern over this issue.
   
   The Special Investigation Team constituted by the Central Government to implement the decisions of Hon’ble the Supreme Court has also expressed the views that measures may be taken to curb the menace of black money. Internationally, a new regime for automatic exchange of financial information is fast taking shape and India is a leading force in this effort. The new legislation has been enacted to apply to all persons resident in India and holding undisclosed foreign income and assets.
   
   A limited window is proposed to persons who have any undisclosed foreign assets. Such persons may file a declaration before the specified tax authority within a specified period, followed by payment of tax at the rate of 30 per cent and an equal amount by way of penalty. Exemptions, deductions, set-off and carried forward losses etc. shall also be not allowed under the new legislation.
   
   Upon fulfilling these conditions, a person shall not be prosecuted under the Bill and the declaration made by him will not be used as evidence against him under the Wealth Tax Act, the Foreign Exchange Management Act (FEMA), the Companies Act or the Customs Act. Wealth Tax shall not be payable on any asset so disclosed. It is merely an opportunity for persons to become tax complaint before the stringent provisions of the new legislation come into force.
   
   This legislation desires to make provisions to deal with the problem of the Black money that is undisclosed foreign income and assets, the procedure for dealing with such income and assets and to provide for imposition of tax on any undisclosed foreign income and asset held outside India and for matters connected therewith or incidental thereto. This Act was enacted on 26th of May, 2015 and was ordained to come into force on the 1st day of July, 2015.

Conclusion:
Finally and far most significantly, the Division Bench then concludes by holding in para 35, 36 and 37 that:
35. For all that has been said and discussed hereinabove, we declare that these Writ Petitions are not maintainable before this Court in view of the efficacious and statutory remedy of appeal being available to the Petitioners in terms of the mandate of Sections 15 and 17 of the Act of 2015. Accordingly, the preliminary objection raised by the Respondents with regard to the maintainability of these Petitions before this Court sustains, as a sequel thereto, all these Petitions shall stand dismissed. This shall also dispose of any pending miscellaneous application(s) accordingly.

36. We, however, having regard to the fact that the Petitioners have been bonafidely pursuing their claim before this Court by filing these Writ Petitions under Article 226 of the Constitution at the relevant point of time and, admittedly, the decision in these Writ Petitions has consumed more than one year, grant liberty to the Petitioners to avail the aforesaid statutory remedy of appeal against the proceedings initiated against them by the Respondent No.3, including the show cause notices, assessment orders, penalty notices, demand notices, within one month from the date of announcement of this Judgment. In the event any such appeal/s is/are filed before the appellate authority within the time so granted by this Court in accordance with the mandate of the Act of 2015, the appellate authority shall consider the same only on merits without making any reference to the period of limitation and, till then, no punitive action shall be taken against the Petitioners. We also make it clear that the appellate authority shall not get influenced by any observation made by this Court while deciding these Writ Petitions. All the contentions of the parties, on merits, are left open to be gone into and decided by the appellate authority as per law.

37. Registry to place a copy of this Judgment on each connected file.

All told, the Jammu and Kashmir and Ladakh High Court have indubitably held that black money stashed abroad threatens national security and so there has to be zero tolerance for it. All steps must be taken on a war footing to ensure that the black money stashed abroad is brought back. Why should honest tax payers suffer for no fault of theirs? This all the more necessitates the bringing back of black money which was underscored most vocally by none other than legendary and eminent Supreme Court lawyer late Ram Jethmalani! No dilly-dallying on it as it brooks no more delay any longer!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh